The Downtown Soup Kitchen v. Municipality of Anchorage

• Court: District Court, D. Alaska
• Decided: August 9, 2019
• Docket: 3:18-cv-00190
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

THE DOWNTOWN SOUP KITCHEN d/b/a DOWNTOWN HOPE CENTER, Plaintiff, v. MUNICIPALITY OF ANCHORAGE, Case No. 3:18-cv-00190-SLG ANCHORAGE EQUAL RIGHTS COMMISSION, and PAMELA BASLER, Individually and in her Official Capacity as the Executive Director of the Anchorage Equal Rights Commission, Defendants.

ORDER RE PENDING MOTIONS Before the Court are four motions. First, Plaintiff The Downtown Soup Kitchen (“Hope Center”) filed a Motion for Preliminary Injunction at Docket 29. Defendants Municipality of Anchorage, Anchorage Equal Rights Commission, and Pamela Basler (collectively, “Anchorage”) responded in opposition at Docket 52, and Hope Center replied at Docket 63. Second, Anchorage filed a Motion for Federal Abstention at Docket 43. Hope Center responded in opposition at Docket 56, and Anchorage replied at Docket 61. Third, Anchorage filed a Motion to Stay Proceedings Pending Resolution of Defendants’ Motion for Abstention at Docket 44. Hope Center responded in opposition at Docket 55, and Anchorage replied at Docket 60. Fourth, Hope Center filed a Motion to Supplement or for Judicial Notice at Docket 79. Anchorage responded in opposition at Docket 85. On January 11, 2019, the parties presented oral argument on the first three motions. Oral

argument on the fourth motion was not requested and was not necessary to the Court’s determination. BACKGROUND Hope Center Plaintiff Hope Center is a faith-based, non-profit organization that offers free

food, showers, Christian ministry, and other services to homeless men and women in the downtown Anchorage area, as well as overnight shelter to homeless women.1 Most of the women that Hope Center shelters have escaped from sex trafficking or been abused or battered, primarily at the hands of men.2 Hope Center can accommodate up to 50 women overnight,3 all of whom sleep on the floor in

one large room, where they may change clothes or be in various states of undress.4 Because of its religious beliefs and its limited space, Hope Center accepts only persons who were determined to be female at birth into its overnight

1 Docket 1 (Compl.) at 7 ¶ 36, 8 ¶¶ 51–52, 9 ¶ 53, 10 ¶¶ 68–69. 2 Id. at 8 ¶¶ 47–48. 3 Id. ¶ 46. 4 Id. at 12 ¶ 80.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. shelter.5 Persons who were determined to be female at birth and who self-identify as men are permitted to access the shelter.6 Hope Center maintains that its religious beliefs include that a person’s sex

is an immutable God-given gift, and that it is wrong for a person to deny his or her God-given sex.7 It contends that it would be against Hope Center’s religious beliefs

5 Id. at 8 ¶ 48. The Court adopts the following definitions from the Third Circuit: “Sex” is defined as the “anatomical and physiological processes that lead to or denote male or female.” Typically, sex is determined at birth based on the appearance of external genitalia. “Gender” is a “broader societal construct” that encompasses how a “society defines what male or female is within a certain cultural context.” A person’s gender identity is their subjective, deep-core sense of self as being a particular gender. . . . “[C]isgender” refers to a person who identifies with the sex that person was determined to have at birth. The term “transgender” refers to a person whose gender identity does not align with the sex that person was determined to have at birth. A transgender boy [or man] is therefore a person who has a lasting, persistent male gender identity, though that person’s sex was determined to be female at birth. A transgender girl [or woman] is a person who has a lasting, persistent female gender identity though that person’s sex was determined to be male at birth. Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 522 (3d Cir. 2018), cert. denied sub nom. Doe v. Boyertown Area Sch. Dist., 139 S. Ct. 2636 (2019) (citations omitted). 6 Id. at 11 ¶¶ 73–74. 7 Id. at 9 ¶ 56.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. to allow persons who were determined to be male at birth to disrobe and sleep in its shelter next to persons who were determined to be female at birth.8 Hope Center requires overnight guests to be persons who were determined

to be female at birth; to be at least 18 years old; to demonstrate no dangerous behavior; to be clean and sober; to be exposed to religious activities; to be able to meet their personal needs without assistance; and to respect shelter guidelines, including prohibitions against smoking, fighting, foul language, and wandering about the property.9 On Saturdays, when the shelter is staffed by volunteers, no

one is allowed into the building to participate in the day shelter unless she stayed in the shelter the Friday night before and thus has gone through a bag check.10 Saturday check-in time for new guests is at 5:45 p.m.11 Hope Center would like to post, publish, or circulate its admittance policy or portions of it,12 but it has refrained from doing so for fear of violating the Anchorage

Municipal Code (“AMC”).13 Similarly, Hope Center would like its attorneys to be

8 Id. ¶ 60. 9 Id. at 11 ¶¶ 72, 75. 10 Id. at 12 ¶¶ 82–83. 11 Id. ¶ 85. 12 Id. at 10-11 ¶ 71, 30 ¶ 210. 13 Id. at 31 ¶¶ 216–20.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. able to speak and write about its policies14 but fears that having them do so would violate the AMC.15 Anchorage Equal Rights Commission

Defendant Anchorage Equal Rights Commission (“AERC”) is an administrative agency within the Municipality of Anchorage.16 In support of the Municipality’s policy of guaranteeing “fair and equal treatment under law to all people of the municipality,”17 AERC investigates complaints of discrimination “based upon race, color, sex, sexual orientation, gender identity, religion, national

origin, marital status, age, or physical or mental disability.”18 It also is empowered to initiate a general investigation on its own motion to determine whether an individual or organization is engaging in such discrimination.19 AERC is authorized

14 Id. ¶¶ 218–19. 15 Id. ¶¶ 217, 220. 16 AMC § 5.10.020. 17 AMC § 5.10.010. 18 AMC §§ 5.10.010, 5.10.040(A)(2). 19 AMC § 5.50.060.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. to conduct discovery,20 subpoena witnesses and documents,21 and hold hearings.22 When a private person or entity files a complaint with AERC, the agency is

required to convene a fact-finding conference with the complainant and the respondent and attempt to negotiate a voluntary resolution of the complaint.23 At least 21 days before the fact-finding conference, AERC is required to provide information and instructions about the conference to the parties.24 At the conference, parties may be represented by legal counsel, but counsel may not

cross-examine the other party and must submit any questions through AERC staff.25 AERC is required to investigate discrimination complaints promptly and impartially and to issue a determination within 240 days of the filing of the complaint.26 If it determines that the allegations are not supported by substantial

20 AMC § 5.50.070. 21 AMC §§ 5.10.040(A)(3), 5.50.080. 22 AMC §§ 5.10.040(A)(5), 5.70.010. 23 AMC § 5.50.020(A). 24 AMC § 5.50.020(B). 25 AMC § 5.50.020(A). 26 AMC §§ 5.50.010, 5.50.050.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. evidence, AERC closes or dismisses the complaint.27 If instead it finds an unlawful discriminatory practice, AERC issues an order requiring cessation of the discriminatory conduct.28 A party against whom such an order is issued may

appeal to the Alaska Superior Court.29 The “Jessie Doe” Incident “Jessie Doe” self-identifies as “female and transgender.”30 On Friday, January 26, 2018, at about 6:00 p.m., Anchorage Police Department officers brought Doe to Hope Center.31 Doe smelled strongly of alcohol, was very agitated,

was aggressive in body language, and had an open wound above one eye.32 Hope Center’s Executive Director, Sherrie Laurie, informed Doe that because Hope Center did not accept individuals who were inebriated or under the influence of alcohol or drugs, Doe could not stay at the shelter.33 She recommended that Doe go to the hospital for medical care of the eye wound.34 Doe eventually agreed,

27 AMC § 5.50.010. 28 AMC § 5.70.140. 29 AMC § 5.80.030(A). 30 Docket 43-2 (AERC Discrimination Compl. No. 18-041). 31 Docket 1 at 12 ¶ 89. 32 Id. at 13 ¶¶ 91-92. 33 Id. ¶ 94. 34 Id. ¶ 96.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. and Laurie paid for a cab to take Doe to the emergency room.35 At approximately 2:00 p.m. the next day, a Saturday, Doe returned to Hope Center and sought admission, which was denied because Doe had not stayed the previous night, as

was required for Saturday admission prior to 5:45 p.m.36 Later, Laurie learned that Doe had initiated a fight at another homeless shelter, the police had been called, and Doe had been banned from the other homeless shelter until July 4, 2018.37 Procedural History On February 1, 2018, Doe filed a complaint (“First Complaint”) with AERC,

alleging that Hope Center’s shelter was a public accommodation and that Hope Center had discriminated against Doe on the basis of sex and gender identity in violation of AMC § 5.20.050.38 AERC informed Hope Center about the First Complaint and scheduled a fact-finding conference for March 15, 2018.39 In a detailed letter to AERC dated March 6, 2018, Hope Center explained that it did not

consider itself to be a public accommodation, that it had not discriminated against Doe on the basis of gender identity, and that it “has First Amendment religious

35 Id. ¶ 97. 36 Id. ¶¶ 99–100. 37 Id. ¶ 95. 38 Docket 43-2. 39 Docket 29-1 (Attachments to Motion for Preliminary Injunction) at 5.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. liberty and association rights to operate as it does.”40 Hope Center asserted that the fact-finding conference should thus be cancelled and stated that it would not attend the conference and would file a motion to dismiss if AERC pursued the

matter.41 AERC pursued its investigation by serving interrogatories on Hope Center.42 On April 23, 2018, Hope Center filed a motion to dismiss that focused on its assertion that its shelter is not a public accommodation covered by AMC § 5.20.050.43 AERC responded with a proposed settlement agreement addressing Hope Center’s “perceived misconduct.”44 On May 11, 2018, Hope Center declined

the settlement proposal.45 On May 15, 2018, AERC filed a separate discrimination complaint against Hope Center and its attorney (“Second Complaint”), claiming that the attorney had made statements published in various media that stated or implied that transgender individuals would not be allowed to be sheltered at Hope Center, in

violation of AMC § 5.20.020 and/or § 5.20.050.46 AERC also set a fact-finding

40 Id. at 4–5 (capitalization omitted). 41 Id. at 5. 42 Docket 1 at 20 ¶ 140. 43 Id. at 21 ¶ 145; Docket 29-1 at 7. There is no indication in the record that AERC has ruled on that motion. See Docket 1 at 4 ¶ 18. 44 Docket 1 at 21 ¶¶ 146–47. 45 Id. at 21 ¶ 149. 46 Id. at 22 ¶¶ 151-54.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. conference and sent a “Request for Essential Information.”47 Because of the potential conflict caused by the Second Complaint against Hope Center’s attorney, Hope Center retained new counsel.48

On June 21, 2018, Hope Center’s new counsel entered an appearance with AERC on the Second Complaint.49 On June 29, 2018, AERC requested a continuance of the fact-finding conference.50 It also expressed concerns that the fact-finding conference, and the ordinance providing for it, lacked constitutional procedures and protections.51 Finally, the letter noted that Hope Center would

supplement its interrogatory answers to include additional information on the jurisdictional issues it intended to raise.52 AERC denied the continuance request and informed Hope Center that it still expected the information it had sought in its “Request for Essential Information.”53

47 Id. ¶ 155. 48 Id. at 23 ¶ 156. 49 Id. ¶ 157. 50 Id. ¶ 159 and at 24 ¶ 168. 51 Id. at 23 ¶¶ 159, 162. 52 Id. ¶ 160. 53 Id. at 24–25 ¶¶ 169–70.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. On July 5, 2018, Hope Center submitted its responses to that request.54 The same day, it also filed a motion to dismiss the Second Complaint for lack of jurisdiction.55 The fact-finding conference on the Second Complaint was held on July 9,

2018.56 At the conference, AERC told Hope Center that the agency had materials that contradicted Hope Center’s discovery responses, but would not provide them to Hope Center at that time.57 On July 13, 2018, Hope Center’s counsel emailed AERC to request the materials discussed at the fact-finding conference.58 In an emailed response,

AERC stated that because the parties’ immediate concern should be a settlement, it would not provide any supplemental information, nor would it require Hope Center to provide any supplemental information.59 On August 3, 2018, while settlement discussions were ongoing, AERC sent Hope Center’s counsel an email that stated in part:

[AERC’s] ability to fully consider [Hope Center’s] arguments will continue to be limited by [Hope Center’s] failure to timely amend and correct its earlier responses. [AERC] will allow [Hope Center] until August 9, 2018, to make appropriate corrections to the interrogatory responses before it takes any formal action in regards to what it views

54 Id. at 25 ¶ 171. 55 Id. ¶ 172. 56 Id. at 27 ¶ 187. 57 Id. ¶ 191. 58 Id. ¶ 192. 59 Id. ¶ 193.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. as [Hope Center’s] lack of candor about its receipt of taxpayer funds and the contractual obligations for the receipt of those funds.60

On August 9, 2018, Hope Center provided amended answers to a number of interrogatories that AERC had propounded to it; it indicated it did so not to correct alleged errors but to make clear that its original answers were truthful.61 Hope Center filed its Complaint in this Court on August 16, 2018, claiming violation of its First Amendment rights of freedom of religion, freedom of speech, and freedom of expressive association; violation of the Establishment Clause; violation of the Fourteenth Amendment rights of procedural due process and equal protection; and violation of its Alaska constitutional rights of freedom of religion, equal protection, and privacy.62 Thereafter, in October 2018, AERC

administratively closed the Second Complaint.63 The First Complaint remains unresolved.64 In November 2018, AERC Executive Director Pamela Basler and AERC Chairperson Wanda Greene filed sworn statements in this case, attesting that “AERC has undertaken no enforcement action against [Hope Center]

60 Id. at 28–29 ¶¶ 198–200. 61 Id. at 29 ¶ 205. 62 Docket 1. 63 Docket 43-1 (AERC Closure). 64 Docket 1 at 29 ¶ 207.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. regarding” the First Complaint.65 They further certified that “AERC will undertake no investigative or enforcement actions regarding [the First Complaint] while this Court exercises jurisdiction in the matter.”66

Relevant Municipal Code Provisions Title 5 of the AMC, entitled “Equal Rights,” is intended to “guarantee fair and equal treatment under law to all people of the municipality, consistent with federal and state constitutional freedoms and laws, including freedom of expression, freedom of association and the free exercise of religion.”67 Chapter 5.20 includes

prohibitions on discriminatory practices in places of public accommodation68 and in the sale, rental, or use of real property.69 Section 5.20.050, “Unlawful practices in places of public accommodation,” provides in relevant part: A. It is unlawful for a person, whether the owner, operator, agent or employee of an owner or operator of a public accommodation, to:

1. Refuse, withhold from or deny to a person any of its accommodations, advantages, facilities, benefits, privileges, services or goods of that place on account of . . . sex [or] gender identity . . . .

65 Docket 53 (Basler Aff.) at 2, ¶ 2; Docket 59-1 (Greene Aff.) at 2, ¶ 2. 66 Docket 53 at 2, ¶ 3; Docket 59-1 at 2, ¶ 3. 67 AMC § 5.10. 68 AMC § 5.20.050. 69 AMC § 5.20.020.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. 2. Publish, circulate, issue, display, post or mail a written or printed communication, notice or advertisement which states or implies that:

a. Any of the services, goods, facilities, benefits, accommodations, advantages or privileges of the public accommodation will be refused, withheld from or denied to a person of a certain . . . sex [or] gender identity . . .; or

b. The patronage or presence of a person belonging to a particular . . . sex [or] gender identity . . . is unwelcome, not desired, not solicited, objectionable or unacceptable.

“Public accommodation” is defined in the AMC as “any business or professional activity that is open to, accepts or solicits the patronage of, or caters or offers goods or services to the general public, subject only to the conditions and limitations established by law and applicable alike to all persons.”70 Although the First Complaint was only brought pursuant to Section 5.20.050, also relevant to this dispute is Section 5.20.020, “Unlawful practices in the sale, rental or use of real property,” which provides in relevant part: A. With the exception of those conditions described in section 5.25.030A. as "lawful practices", it is unlawful for the owner, lessor, manager, agent, brokerage service, or other person having the right to sell, lease, rent, [or] advertise . . . real property to:

1. Refuse to sell, lease or rent, or to otherwise make unavailable, the real property to a person because of . . . sex [or] gender identity . . . .

70 AMC § 5.20.010.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. 2. Discriminate against a person because of . . . sex [or] gender identity . . . in a term, condition or privilege relating to the use . . . of real property. . . .

7. Circulate, issue or display, make, print or publish, or cause to be made or displayed, printed or published, any communication, sign, notice, statement or advertisement with respect to the use . . . of real property that indicates any preference, limitation, specification or discrimination based on . . . sex [or] gender identity . . . .

Section 5.25.030, “Lawful practices,” provides in relevant part:

A. Notwithstanding the provisions of this chapter, it shall not apply with respect to the following conditions: . . .

9. The establishment of a hospital, convent, monastery, shelter, asylum, or residential facility for the care and lodging of persons in need of special medical, rehabilitative, social, or psychological support, including, but not limited to . . . shelters for the homeless.

JURISDICTION This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction with respect to the state law claims pursuant to 28 U.S.C. § 1367. DISCUSSION I. MOTION FOR FEDERAL ABSTENTION As a threshold matter, Anchorage asserts that the Court should abstain from exercising jurisdiction under the Younger doctrine.71

71 Younger v. Harris, 401 U.S. 37 (1971).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. A. Legal Standard “Abstention from the exercise of federal jurisdiction is the exception, not the rule.”72 “[F]ederal courts ordinarily should entertain and resolve on the merits an

action within the scope of a jurisdictional grant, and should not refuse to decide a case in deference to the states.”73 The Supreme Court has instructed that federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given them.”74 However, in “exceptional circumstances,” a federal court may abstain from

exercising its jurisdiction “where denying a federal forum would clearly serve an important countervailing interest.”75 One such circumstance is Younger abstention, in which “concerns for comity and federalism” make abstention appropriate when a particular type of state proceeding is pending.76

72 Colo. River Water Conservation Dist. v. U.S., 424 U.S. 800, 813 (1976). 73 Sprint Commc’ns., Inc. v. Jacobs, 571 U.S. 69, 73 (2013) (quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (NOPSI)) (internal quotation marks and alteration omitted). 74 Colo. River Water Conservation Dist., 424 U.S. at 817. 75 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (internal quotation marks omitted) (surveying various types of federal abstention). 76 See, e.g., Ohio Civil Rights Comm’n v. Dayton Christian Schs., 477 U.S. 619, 627 (1986) (surveying Younger line of cases).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. “A federal court may abstain under Younger in three categories of cases: ‘(1) parallel, pending state criminal proceedings, (2) state civil proceedings that are akin to criminal prosecutions, and (3) state civil proceedings that implicate a State’s

interest in enforcing the orders and judgments of its courts.’”77 In addition to falling into one of the three categories, to warrant Younger abstention “the state proceeding must be (1) ‘ongoing,’ (2) ‘implicate important state interests,’ and (3) provide ‘an adequate opportunity . . . to raise constitutional challenges.’”78 If those threshold elements are met, a federal court may abstain under Younger if the

federal action would have the practical effect of enjoining the state proceedings and no other exception to Younger applies.79 Here, the proceedings before AERC are clearly not category (1) or (3) proceedings. At issue is whether the proceeding before AERC falls within category (2); that is, whether the AERC proceeding is a state civil proceeding that is akin to

a criminal prosecution. The Ninth Circuit has described this category of cases as “quasi-criminal enforcement actions.”80 Although the Ninth Circuit has not directly addressed the issue, several federal courts have concluded that when the pending

77 Herrera v. City of Palmdale, 918 F.3d 1037, 1043 (9th Cir. 2019) (quoting ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014)). 78 Id. at 1044 (quoting Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). 79 ReadyLink, 754 F.3d at 759. 80 Id.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. state proceedings are at the investigative stage, the state proceeding is not a “quasi-criminal enforcement action.” For example, in Telco Communications, Inc. v. Carbaugh, a state agency notified a fundraising company that the agency had

received a complaint alleging prohibited conduct and asked the company to attend an informal factfinding conference.81 After attending the conference, the company filed a federal suit seeking protection against action by the agency on First Amendment grounds, among other claims.82 The Fourth Circuit held “that the period between the threat of enforcement and the onset of formal enforcement

proceedings may be an appropriate time for a litigant to bring its First Amendment challenges in federal court.”83 As the court explained: Where no formal enforcement action has been undertaken, any disruption of state process will be slight. . . . Appellant's contention— that abstention is required whenever enforcement is threatened— would leave a party’s constitutional rights in limbo while an agency contemplates enforcement but does not undertake it. A federal plaintiff would be placed “between the Scylla of intentionally flouting state law and the Charybdis of forgoing what [it] believes to be constitutionally protected activity in order to avoid becoming enmeshed” in enforcement proceedings.84

81 885 F.2d 1225, 1227 (4th Cir. 1989). 82 Id. 83 Id. at 1229. 84 Id. (quoting Steffel v. Thompson, 415 U.S. 452, 462 (1974)) (citing Wulp v. Corcoran, 454 F.2d 826, 831 (1st Cir. 1972)).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. Noting that the agency had not initiated formal enforcement proceedings against the company, the Fourth Circuit upheld the district court’s decision not to abstain.85 The First Circuit applied a similar approach in Guillemard-Ginorio v.

Contreras-Gomez.86 There, the Office of the Insurance Commissioner of Puerto Rico (“OIC”) had notified the plaintiff insurance agency and its principals that they were being investigated; it commenced an investigation but had not brought charges prior to the initiation of the federal case. Noting that “no formal enforcement action ha[d] been undertaken” against the company or its principals,

the First Circuit concluded “that the agency's investigation of the plaintiffs was at too preliminary a stage to constitute a ‘proceeding’ triggering Younger abstention.”87 Based in part on this conclusion, the circuit court held that the district court properly denied abstention.88 Other federal courts have reached similar conclusions.89

85 Id. at 1228, 1230. 86 585 F.3d 508 (1st Cir. 2009). 87 Id. at 519, 520. 88 Id. at 523. 89 See, e.g., Mulholland v. Marion Election Bd., 746 F.3d 811, 817 (7th Cir. 2014) (state investigatory proceedings were at too preliminary a stage to warrant federal deference); La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1490–91 (5th Cir. 1995) (district court’s ruling that there was no ongoing proceeding did not constitute abuse of discretion where “[s]ubsequent to . . . complaints being filed with the Commission against the [plaintiffs] . . . the only administrative activity ha[d] been” letters issued to plaintiffs advising them of the allegations); Myers v. Thompson, 192 F. Supp. 3d 1129, 1137 (D. Mont. 2016) (“While a proceeding before [Montana’s Office of Disciplinary Counsel (“ODC”)] has the potential to be ‘akin to criminal proceedings,’

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. B. Analysis Because the underlying state proceeding in this case is an administrative proceeding, Younger abstention is appropriate only if that proceeding is a “quasi-

criminal enforcement action.”90 But at the time this action was filed, the AERC proceeding was not a quasi-criminal enforcement action; rather, that proceeding was in the investigative phase. AERC had not yet determined whether Hope Center’s conduct violated the AMC provisions at issue, or even whether AERC has jurisdiction regarding the First Complaint.91 Indeed, in November 2018, AERC’s

Executive Director and its Chairperson both certified that “AERC has undertaken no enforcement action against Plaintiff regarding” the First Complaint.92 Like the state court proceedings at issue in Telco Communications, Inc., Guillemard- Ginorio, and the other federal cases cited above, the AERC proceeding is not a “quasi-criminal enforcement action” that would justify Younger abstention by this

Court.

ODC’s investigation into this case has not progressed beyond the investigation stage. Other courts have determined that investigation proceedings, without more, do not trigger Younger.” (citations omitted)); cf. ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 760 (9th Cir. 2014) (“[I]f the mere ‘initiation’ of a judicial or quasi- judicial administrative proceeding were an act of civil enforcement, Younger would extend to every case in which a state judicial officer resolves a dispute between two private parties.”). 90 ReadyLink, 754 F.3d at 758; see Herrera v. City of Palmdale, 918 F.3d 1037, 1043 (9th Cir. 2019). 91 Docket 53 at 2; Docket 59-1 at 2. 92 Docket 53 at 2; Docket 59-1 at 2.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. Anchorage contends that this case is analogous to Ohio Civil Rights Commission v. Dayton Christian Schools, Inc.93 and Middlesex County Ethics Commission v. Garden State Bar Association.94 Both cases, however, are

distinguishable from the case at hand, because “the regulating agencies in those cases had investigated the allegations, made determinations that probable cause existed, and served formal charges on the entities.”95 As noted above, the AERC proceeding against Hope Center did not progress past the investigatory stage. “In short, the state action [in Dayton Christian Schools and Middlesex] had progressed

significantly beyond that here.”96 Because the state proceeding before AERC regarding the First Complaint is not a “quasi-criminal enforcement action,” Younger abstention is not appropriate. Accordingly, Anchorage’s motion for federal abstention will be denied.97

93 477 U.S. 619 (1986); see Docket 61 at 4–7. 94 457 U.S. 423, 431 (1982). 95 La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1490 (5th Cir. 1995) (citing Dayton Christian Schs., 477 U.S. at 623–24; Middlesex, 457 U.S. at 428). 96 Id. 97 In light of this conclusion, the Court does not reach the three-part test articulated in Herrara or determine whether other considerations would preclude Younger abstention. See Herrera v. City of Palmdale, 918 F.3d 1037, 1044 (9th Cir. 2019); ReadyLink, 754 F.3d at 759.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. II. MOTION TO STAY PROCEEDINGS Anchorage moved to stay all proceedings in this case pending a ruling on Anchorage’s motion for abstention.98 For the reasons discussed in Section I.

above, the Court is denying Anchorage’s motion for abstention. Accordingly, Anchorage’s motion to stay will be denied as moot. III. MOTION TO SUPPLEMENT OR FOR JUDICIAL NOTICE Hope Center moves to supplement its Motion for Preliminary Injunction with several sealed documents. In the alternative, Hope Center requests that the Court

take judicial notice of the documents.99 Anchorage contends that Hope Center has offered no explanation as to why the relevance of the sealed documents was not appreciated until after briefing was complete, and that accordingly Hope Center’s motion does not satisfy the requirements for supplementation pursuant to Alaska Local Civil Rule 7.1(d).100 While the Court finds the sealed documents to be of

98 Docket 44. 99 Docket 79 at 2. 100 Docket 95 at 3–4. In relevant part, Rule 7.1(d) reads as follows: [A]fter briefing of a motion is complete, supplementation of factual materials may occur only by motion for good cause. The motion must have the proposed factual materials attached as an exhibit and address the reasons earlier filing was not possible or their relevance was not appreciated. Such motions will not routinely be granted.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. limited relevance to the pending motions, the Court will allow Hope Center to supplement its Motion for Preliminary Injunction with these documents. Accordingly, the Court does not address Hope Center’s request that the Court take

judicial notice of the documents. IV. MOTION FOR PRELIMINARY INJUNCTION A. Legal Standard Hope Center moves for “a preliminary injunction to stop Defendants from applying Anchorage Municipal Code, Title 5, § 5.20.050 and § 5.20.020 in a

manner that violates Hope Center’s rights under the First and Fourteenth Amendments of the U.S. Constitution and under Article 1, §§ 1, 4, and 22 of the Alaska Constitution.”101 A party moving for a preliminary injunction must make a “clear showing of each element of standing.”102 “[T]he irreducible constitutional minimum of

standing” consists of three elements: injury in fact, causation, and a likelihood that

101 Docket 29 at 2, ¶ 1. 102 Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013). Although the parties do not address standing in their briefing on this motion, the Court addresses it on its own initiative. See D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008) (“[B]oth the Supreme Court and this court have held that whether or not the parties raise the issue, ‘[f]ederal courts are required sua sponte to examine jurisdictional issues such as standing.’” (emphasis in original) (quoting Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2001)) (citing United States v. Hays, 515 U.S. 737, 742 (1995))).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. a favorable decision will redress the plaintiff's alleged injury.103 When challenging a law prior to its enforcement, a plaintiff satisfies the injury in fact requirement where the plaintiff “intends to engage in ‘a course of conduct arguably affected with

a constitutional interest’ and [] there is a credible threat that the challenged provision will be invoked against the plaintiff.”104 “First Amendment challenges ‘present unique standing considerations’ because of the ‘chilling effect of sweeping restrictions’ on speech.”105 Accordingly, “when the threatened enforcement effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of

standing.”106 “Even in the First Amendment context,” however, “a plaintiff must show a credible threat of enforcement.”107 “In determining whether a plaintiff faces [] a credible threat in the pre-enforcement context, this Court considers three factors: (1) the likelihood that the law will be enforced against the plaintiff; (2) whether the plaintiff has shown, ‘with some degree of concrete detail,’ that [it]

intends to violate the challenged law; and (3) whether the law even applies to the

103 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). 104 LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th Cir. 2000) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). 105 Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1171 (9th Cir. 2018) (quoting Ariz. Right to Life Political Action Comm. v. Bayless (ARLPAC), 320 F.3d 1002, 1006 (9th Cir. 2003)). 106 LSO, 205 F.3d at 1155. 107 Italian Colors, 878 F.3d at 1171.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. plaintiff.”108 When a plaintiff challenges the enforcement of multiple legal provisions, a court considers separately whether the plaintiff has standing to challenge the enforcement of each provision at issue.109

In addition to standing, plaintiffs seeking preliminary injunctive relief must establish that “(1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest.”110 “Under the sliding scale approach to preliminary injunctions observed

in [the Ninth Circuit], the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.”111 But in any event, even with the sliding-scale approach, “plaintiffs must

108 Id. at 1171–72 (9th Cir. 2018) (quoting Lopez v. Candaele, 630 F.3d 775, 786 (9th Cir. 2010)). 109 See, e.g., McCormack v. Hiedeman, 694 F.3d 1004, 1025 (9th Cir. 2012). 110 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Anchorage contends that “[b]eause the government is a party to these proceedings, the final two factors of a preliminary injunction analysis . . . merge.” Docket 52 at 17 (citing Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)). The cases this Court has reviewed have merged these factors when the federal government is a party to the proceeding. See, e.g., Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 539 (N.D. Cal.), reconsideration denied, 267 F. Supp. 3d 1201 (N.D. Cal. 2017), appeal dismissed as moot sub nom. City & Cty. of San Francisco v. Trump, No. 17-16886, 2018 WL 1401847 (9th Cir. Jan. 4, 2018) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). 111 Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (citation and internal quotation marks omitted). See also All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.”112 Injunctive relief is an equitable remedy, and “[t]he essence of equity jurisdiction is the power of the court to fashion a remedy

depending upon the necessities of the particular case.”113 B. Analysis 1. Standing to seek a preliminary injunction A federal court has “an independent obligation to determine whether subject- matter jurisdiction exists, even when no party challenges it.”114 “A suit brought by

a plaintiff without Article III standing is not a ‘case or controversy,’ and an Article III federal court therefore lacks subject matter jurisdiction over the suit.”115 The Court therefore first considers on its own initiative whether Hope Center has standing to challenge the enforcement of AMC §§ 5.20.020 and 5.20.050.116 The

1131–35 (2011) (discussing post-Winter circuit split over continuing viability of sliding- scale approach and joining Seventh and Second Circuits in retaining it). 112 All. for the Wild Rockies, 632 F.3d at 1131 (citing Winter, 555 U.S. at 22) (emphasis in original). 113 Sierra Forest, 577 F.3d at 1022 (quoting United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987)). 114 Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (citations omitted). 115 Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)). 116 See supra note 102.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. Court addresses separately Hope Center’s standing to challenge each provision.117 The Court first turns to the public accommodation provision, AMC

§ 5.20.050. Doe’s First Complaint cited to this provision, but that AERC proceeding has not progressed past the investigatory phase. Accordingly, the Court must determine whether Hope Center has suffered “a credible threat in the pre-enforcement context.”118 To that end, the Court will consider (1) the likelihood that the law will be enforced against Hope Center; (2) whether Hope Center has

shown, “with some degree of concrete detail,” that it intends to violate the challenged law; and (3) whether the law even applies to Hope Center.119 Considering these factors, the Court is satisfied that Hope Center has established a credible threat of enforcement with respect to AMC § 5.20.050. First, AMC § 5.20.050 prohibits public accommodations from discriminating on the basis

of sex or gender identity. Unlike AMC § 5.20.020, § 5.20.050 does not include language explicitly exempting homeless shelters from that prohibition.120 Accordingly, Hope Center’s intended conduct “arguably falls within the [provision’s]

117 See McCormack v. Hiedeman, 694 F.3d 1004, 1025 (9th Cir. 2012). 118 Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1171–72 (9th Cir. 2018). 119 Id. at 1172. 120 In its briefing before the AERC, Hope Center contended that the “lawful practices” exemption extends to AMC § 5.20.050. In light of the analysis below, the Court assumes, without deciding, that the exemption applies only to AMC § 5.20.020.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. reach.”121 Turning to the likelihood of enforcement, there is currently an “impending proceeding” against Hope Center that was initiated pursuant to AMC § 5.20.050.122 AERC has not suggested that the provision would not be enforced

if it were violated, nor had the provision “fallen into desuetude.”123 Indeed, after the First Complaint was filed, AERC’s executive director initiated a second AERC proceeding against Hope Center pursuant to AMC § 5.20.050.124 Accordingly, Hope Center’s assertion that they are refraining from engaging in certain conduct for fear of an enforcement action against it under this provision is reasonable.

Finally, Hope Center has shown that it has a concrete plan to engage in conduct that arguably violates the provision. Among other assertions, Hope Center has declared a specific intent to post, publish, or circulate its admittance policy or portions of it.125 Based on the foregoing, the Court concludes that Hope Center has standing to challenge AMC § 5.20.050.

121 See Lopez v. Candaele, 630 F.3d 775, 788 (9th Cir. 2010) (quoting California Pro- Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003)). 122 See Italian Colors, 878 F.3d at 1173. 123 Id. (quoting Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1007 (9th Cir. 2003)). 124 The Second Complaint also cited AMC § 5.20.050. See Docket 28-5 (AERC Discrimination Compl. No. 18-167). 125 Docket 1 at 10–11 ¶ 71, 30 ¶ 210.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. Turning to AMC § 5.20.020, the Court must determine whether Hope Center has suffered “a credible threat in the pre-enforcement context” with respect to this code provision.126 This provision presents a closer question, as two of the three

factors suggest that Hope Center does not face a credible threat of enforcement: First, AMC § 5.20.020 explicitly exempts homeless shelters. Even in cases that may implicate First Amendment rights, courts have found that claims of future harm lack credibility where, as here, the provision in question “clearly fails to cover [the plaintiff's] conduct.”127 Second, Hope Center does not appear to have alleged a

concrete plan to engage in conduct that arguably violates the provision; because Hope Center is a homeless shelter, the provision’s prohibitions on sex and gender discrimination would not appear to cover Hope Center’s proposed conduct. Although two factors suggest that Hope Center does not face a credible threat of enforcement with respect to AMC § 5.20.020, the third factor weighs

heavily in Hope Center’s favor. The First Complaint against Hope Center was filed only pursuant to AMC § 5.20.050; but the Second Complaint was filed pursuant to both AMC § 5.20.020 and AMC § 5.20.050. And while the First Complaint was filed by Doe, the Second Complaint was filed by AERC’s Executive Director.128

126 Italian Colors, 878 F.3d at 1171–72. 127 Lopez v. Candaele, 630 F.3d 775, 788 (9th Cir. 2010) (alteration in original) (quoting Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003)). 128 Docket 28-5.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. Although AERC later dismissed the Second Complaint, the agency has not explained the basis for that dismissal. And while AMC § 5.20.020 is not implicated in any ongoing AERC proceeding, the record does not indicate that the agency

has “disavow[ed] application of the challenged provision” to Hope Center in the future.129 Based on the foregoing, the Court finds that the “likelihood of enforcement” factor weighs in Hope Center’s favor. Further, “keeping in mind that ‘when the threatened enforcement effort implicates First Amendment rights, the [standing]

inquiry tilts dramatically toward a finding of standing,’” the Court concludes that Hope Center has established a credible threat of enforcement as to AMC § 5.20.020.130 Furthermore, the alleged injury is traceable to AMC § 5.20.020 and would likely be redressed by a favorable decision enjoining enforcement of the provision. Accordingly, Hope Center has standing to challenge AMC § 5.20.020.

2. Preliminary injunctive relief a. Likelihood of success on the merits Hope Center contends that a preliminary injunction is appropriate because AMC §§ 5.20.020 and 5.20.050 are unconstitutional as-applied to the

129 See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000) (“Courts have also considered the Government's failure to disavow application of the challenged provision as a factor in favor of a finding of standing.”). 130 Italian Colors, 878 F.3d at 1174 (quoting LSO, 205 F.3d at 1155).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. constitutionally protected activities of Hope Center and its agents.131 However, “[i]t is a well-established principle governing the prudent exercise of [the federal court’s] jurisdiction that normally the Court will not decide a constitutional question

if there is some other ground upon which to dispose of the case.”132 Here, Hope Center also contends that AMC § 5.20.020 does not apply to “shelters for the homeless” and that Hope Center is not a “public accommodation” within the meaning of AMC § 5.20.050.133 If that is the case, then Anchorage would not be able to enforce these provisions against Hope Center, irrespective of their

constitutionality. Accordingly, the Court will first consider whether either of these code provisions apply to Hope Center’s overnight living space for homeless persons. Determining whether AMC §§ 5.20.020 and 5.20.050 apply to Hope Center’s homeless shelter requires interpretation of the Anchorage Municipal Code. “The

interpretation of municipal ordinances and charters “is governed by rules of

131 Docket 29 at 1, 3–4. 132 Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (quoting Escambia County v. McMillan, 466 U.S. 48, 51 (1984)); cf. United States v. Vargas, 915 F.3d 417, 420 (7th Cir. 2019) (“Vargas presents almost all of his argument in constitutional terms, asserting that the judge violated the Due Process Clause of the Fifth Amendment. . . . It is, for him, the Constitution or nothing[.] . . . This is a hopeless strategy, because courts are obliged to consider statutory and rule-based arguments ahead of constitutional ones.”). 133 See Docket 1 at 3, ¶ 10; 40, ¶ 288; 47, ¶ 341; 50, ¶ 367; Docket 29-1 at 4.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. statutory construction.”134 Federal courts apply state rules of statutory construction when interpreting municipal laws.135 Alaska courts “apply the same rules of interpretation” when construing statutes and municipal ordinances.136 The Alaska

Supreme Court has explained Alaska’s rules of statutory interpretation as follows: Interpretation of a statute begins with its text. In addition to the text, we also consider a statute’s legislative history and purpose. In construing a statute, we have adopted a sliding scale approach whereby the plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be. Whenever possible we interpret each part or section of a statute with every other part or section, so as to create a harmonious whole.137 The Alaska Supreme Court has also held that “[w]here an agency interprets its own regulations, a deferential standard of review properly recognizes that the agency is best able to discern its intent in promulgating the regulation at issue.”138

134 Canfield v. Sullivan, 774 F.2d 1466, 1468–69 (9th Cir. 1985) (citation omitted). 135 See id.; see also McGraw v. City of Huntington Beach, 882 F.2d 384, 387–88 (9th Cir. 1989). 136 Cent. Recycling Servs., Inc. v. Municipality of Anchorage, 389 P.3d 54, 57 (Alaska 2017). 137 Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 763 (Alaska 2018), reh’g denied (Oct. 10, 2018) (citations and quotations omitted). 138 Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 284 n.13 (Alaska 1994) (citation omitted).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. With these principles in mind, the Court first turns to AMC § 5.20.020. In relevant part, the provision states that it is unlawful for certain persons, including an owner of real property,139 to:

1. Refuse to sell, lease or rent, or to otherwise make unavailable, the real property to a person because of . . . sex [or] gender identity . . . .

2. Discriminate against a person because of . . . sex [or] gender identity . . . in a term, condition or privilege relating to the use . . . of real property. . . .

7. Circulate, issue or display, make, print or publish, or cause to be made or displayed, printed or published, any communication, sign, notice, statement or advertisement with respect to the use . . . of real property that indicates any preference, limitation, specification or discrimination based on . . . sex [or] gender identity . . . .

The provision also states that these prohibitions do not apply to “those conditions described in section 5.25.030A as “lawful practices.” In relevant part, AMC § 5.25.030 defines “lawful practices” to include: 9. The establishment of a hospital, convent, monastery, shelter, asylum, or residential facility for the care and lodging of persons in need of special medical, rehabilitative, social, or psychological support, including, but not limited to . . . shelters for the homeless. It is clear from the structure and plain text of these provisions that the drafters of the AMC intended to exempt homeless shelters from the prohibitions on conduct

139 AMC § 5.20.020 applies to “the owner, lessor, manager, agent, brokerage service, or other person having the right to sell, lease, rent, advertise, or an owner’s association having the powers of governance and operation of real property.”

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. articulated in AMC § 5.20.020. Furthermore, the Alaska Supreme Court has concluded that “[t]he purpose of AMC 5.20.020 . . . is to prohibit discrimination in the rental housing market.”140 Applying the provision’s prohibitions to Hope

Center’s homeless shelter would not further this purpose. Hope Center is thus likely to succeed as to its contention that AMC § 5.20.020 does not apply to Hope Center’s homeless shelter. The Court next turns to AMC § 5.20.050. In relevant part, the provision states that it is unlawful for the “owner or operator of a public accommodation” to:

1. Refuse, withhold from or deny to a person any of its accommodations, advantages, facilities, benefits, privileges, services or goods of that place on account of . . . sex [or] gender identity . . . .

2. Publish, circulate, issue, display, post or mail a written or printed communication, notice or advertisement which states or implies that:

a. Any of the services, goods, facilities, benefits, accommodations, advantages or privileges of the public accommodation will be refused, withheld from or denied to a person of a certain . . . sex [or] gender identity . . . ; or

b. The patronage or presence of a person belonging to a particular . . . sex [or] gender identity . . . is unwelcome, not desired, not solicited, objectionable or unacceptable.

140 Swanner, 874 P.2d at 280 (footnote omitted).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. To determine whether these prohibitions apply to Hope Center, the Court must consider whether Hope Center is an “owner or operator of a public accommodation” within the meaning of the AMC. The AMC defines “public

accommodation” as “any business or professional activity that is open to, accepts or solicits the patronage of, or caters or offers goods or services to the general public, subject only to the conditions and limitations established by law and applicable alike to all persons.”141 In contrast to AMC § 5.20.020, § 5.20.050 does not include language that

expressly exempts homeless shelters from its prohibitions.142 Nevertheless, Alaska’s rules of statutory interpretation and the structure of the Anchorage Municipal Code as a whole suggest that homeless shelters are not public accommodations as defined in AMC § 5.20.050. For if the term “public accommodation” in AMC § 5.20.050 is read to apply to homeless shelters, then

the exemption for homeless shelters contained in AMC § 5.20.020 would have no effect.143 Pursuant to Alaska Supreme Court precedent, this Court must “interpret

141 AMC § 5.20.010. 142 In its briefing before the AERC, Hope Center contended that the “lawful practices” exemption extends to AMC § 5.20.050. In light of the analysis below, the Court assumes, without deciding, that the exemption applies only to AMC § 5.20.020. 143 While the language used in the two provisions is slightly different, the conduct prohibited by the two provisions is essentially identical. Compare 5.20.020(A)(1)–(2) (“Refuse to sell, lease or rent, or to otherwise make unavailable, the real property to a person because of . . . sex [or] gender identity [or] . . . . Discriminate against a person because of . . . sex [or] gender identity . . . in a term, condition or privilege relating to the use . . . of real property. . . .”) with 5.20.050(A)(1)(“ Refuse, withhold from or deny to a

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. each part or section of a statute [or municipal code] with every other part or section, so as to create a harmonious whole.”144 To give effect to the exemption for homeless shelters contained in AMC § 5.20.020, the Court concludes that Hope

Center is not an “owner or operator of a public accommodation” within the meaning of AMC § 5.20.050.145 Hope Center is thus likely to succeed as to its contention that AMC § 5.20.050 does not apply to Hope Center’s homeless shelter. Because neither of the AMC provisions at issue appear to apply to Hope Center’s homeless shelter, it has a “likelihood of success on the merits” as to its claims.

person any of its accommodations, advantages, facilities, benefits, privileges, services or goods of that place on account of . . . sex [or] gender identity . . . .”); compare 5.20.20(A)(7) (“Circulate, issue or display, make, print or publish, or cause to be made or displayed, printed or published, any communication, sign, notice, statement or advertisement with respect to the use . . . of real property that indicates any preference, limitation, specification or discrimination based on . . . sex [or] gender identity . . . .”) with 5.20.50(A)(2) (“Publish, circulate, issue, display, post or mail a written or printed communication, notice or advertisement which states or implies that: [] Any of the services, goods, facilities, benefits, accommodations, advantages or privileges of the public accommodation will be refused, withheld from or denied to a person of a certain . . . sex [or] gender identity . . . ; or . . . The patronage or presence of a person belonging to a particular . . . sex [or] gender identity . . . is unwelcome, not desired, not solicited, objectionable or unacceptable.”). 144 Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 763 (Alaska 2018), reh'g denied (Oct. 10, 2018) (citations and quotations omitted). 145 This conclusion may seem at odds with the Court’s standing analysis. See supra note 121 and accompanying text. However, Ninth Circuit precedent indicates that at the standing stage, the applicability factor weighs in favor of standing if conduct “arguably falls within the [provision’s] reach.” Lopez v. Candaele, 630 F.3d 775, 788 (9th Cir. 2010) (emphasis added) (citing California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003)). In contrast, the question at this stage is whether Hope Center would likely succeed on the merits.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. b. Likelihood of irreparable harm in the absence of preliminary relief Irreparable harm “analysis focuses on irreparability, ‘irrespective of the magnitude of the injury.’”146 “A threat of irreparable harm is sufficiently immediate

to warrant preliminary injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a decision on the merits can be rendered.’”147 Hope Center alleges injury in the form of interference with its constitutional rights.148 Hope Center also alleges that the code provisions at issue have “hindered [Hope Center’s] ability to raise funds, leaving it in a tenuous financial

state.”149 Additionally, Hope Center contends that enforcement of AMC §§ 5.20.020 and 5.20.050 against Hope Center would impede its ability to provide overnight living space for homeless persons.150 Anchorage asserts that Hope Center has failed to “demonstrate that irreparable injury is likely in the absence of

146 California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018), cert. denied sub nom. Little Sisters of the Poor Jeanne Jugan Residence v. California, No. 18-1192, 2019 WL 1207008 (U.S. June 17, 2019) (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999)). 147 Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1023 (9th Cir. 2016) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). 148 Docket 30 at 29; see Docket 63 at 13 (“Anchorage’s acts either chill Hope Center’s speech or threaten imminent enforcement that will stop Hope Center from operating consistent with its beliefs.”). 149 Docket 56 at 28 (“Hope Center’s women’s shelter will likely close its doors if it does not get equitable relief from this Court.”). 150 Docket 1 at 30 ¶¶ 212–15.

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. an injunction, not merely that it is possible.”151 It also asserts that Hope Center has not shown that its alleged financial injury would be irreparable.152 Here, Hope Center has established a sufficient likelihood of irreparable harm

resulting from restrictions on Hope Center’s ability to provide overnight living space to homeless persons. In Hawaii v. Trump, the Ninth Circuit found that Hawaii’s “inability to assist in refugee resettlement” weighed in favor of finding a likelihood of irreparable harm to the State.153 Similarly, in Doe v. Trump, the District Court for the Western District of Washington found irreparable harm when the plaintiff

organizations “ha[d] built programs specifically to serve Muslim and Arabic- speaking refugees,” and government action would impede their ability to continue providing services to those populations.154 The harms alleged in those cases are similar to those at issue here. Declarations from persons who have used Hope Center’s overnight living space provide additional support for Hope Center’s

151 Docket 52 at 14 (quoting Arc. of California v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014)). 152 Docket 75 at 37–38. 153 859 F.3d 741, 782 (9th Cir.), cert. granted sub nom. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017), vacated and remanded on other grounds, 138 S. Ct. 37 (2017). 154 288 F. Supp. 3d 1045, 1083 (W.D. Wash. 2017), reconsideration denied, 284 F. Supp. 3d 1182 (W.D. Wash. 2018); see also Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 739 (S.D. Ind. 2016), aff'd, 838 F.3d 902 (7th Cir. 2016) (“Although the funding denied to [the agency] could be reimbursed, [the agency] has presented evidence that, in the interim, its organizational objectives would be irreparably damaged by its inability to provide adequate social services to its clients.”).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. contention that it would have difficulty serving its target population if AMC §§ 5.20.020 and 5.20.050 were enforced against the shelter.155 Based on the foregoing, the Court concludes that Hope Center has demonstrated that it is likely

to suffer irreparable harm in the absence of preliminary injunctive relief. c. Balance of the equities The third requirement that a moving party must show in order to obtain a preliminary injunction is that the balance of equities tips in its favor.156 “[T]he very purpose of a preliminary injunction . . . is to preserve the status quo and the rights

of the parties until a final judgment issues in the cause.”157 One factor considered by courts when balancing the equities is whether a mandatory or prohibitory injunction is sought; the latter is considered substantially less burdensome to the defendant.158 Hope Center contends that the equities favor it because the Code provisions

at issue “irreparably harm Hope Center’s constitutional freedoms and significantly hinder its ministry”; in contrast, it maintains that “Anchorage can achieve any valid

155 Docket 34 (S.D. Decl.); Docket 35 (G.O. Decl.); Docket 36 (F.S. Decl.). 156 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). 157 U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010). 158 See, e.g., Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878–79 (9th Cir. 2009).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. interest through laws already on the books.”159 Anchorage responds that it has “a substantial interest in (1) the comity of the courts and the orderly administration of ongoing state proceedings . . . and (2) enforcing AMC § 5.20.050, which serves

the fundamentally important purpose of protecting the rights of all protected classes in the Municipality of Anchorage.”160 Anchorage also contends that Hope Center “seeks to alter the status quo by . . . posting its policies and beliefs regarding sex and gender identity.”161 Hope Center seeks to enjoin Anchorage from enforcing AMC §§ 5.20.020

and 5.20.050 against it. In that regard, Hope Center seeks to preserve the status quo at its homeless shelter.162 Additionally, Hope Center is not asking the Court to order Anchorage to take any specific action. And while Anchorage undoubtedly has an interest in enforcing the city’s anti-discrimination provisions, the issuance of a preliminary injunction in this instance would not unduly limit Anchorage’s ability

to do so, as the actions Hope Center seeks to enjoin appear to be beyond the scope of the relevant provisions.163

159 Docket 30 at 29–30. 160 Docket 52 at 19. 161 Docket 52 at 18. 162 See Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1060 (9th Cir. 2014) (stating that “status quo” refers to status quo refers to the “legally relevant relationship between the parties before the controversy arose” (emphasis omitted)). 163 Cf. Hawaii v. Trump, 859 F.3d 741, 783 (9th Cir.), cert. granted sub nom. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, (2017), vacated and remanded on

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. Accordingly, the equities tip in Hope Center’s favor. d. Whether injunctive relief is in the public interest “The public interest analysis for the issuance of a preliminary injunction

requires [the Court] to consider whether there exists some critical public interest that would be injured by the grant of preliminary relief.”164 Preventing discrimination against protected classes is clearly an important public interest. But AMC §§ 5.20.020 and 5.20.050 do not appear to apply to Hope Center’s homeless shelter. Therefore, enjoining the enforcement of those

provisions against Hope Center’s homeless shelter will not significantly curtail the public interest.165 Moreover, the provision of overnight living space for homeless persons furthers the public interest. Affidavits submitted by persons who have used Hope Center’s overnight living space support the conclusion that the public

other grounds, 138 S. Ct. 377 (2017) (“[T]he Government’s interest in combating terrorism is an urgent objective of the highest order. Nonetheless, the President must exercise his authority under § 1182(f) lawfully . . . . Because the President has not done so, we cannot conclude that national security interests outweigh the harms to Plaintiffs.” (quotation and citations omitted)). 164 Cal. Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098, 1114–15 (9th Cir. 2010), vacated on other grounds and remanded sub nom. Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S. 606 (2012) (citation omitted). 165 See Hawaii 859 F.3d at 784 (9th Cir.) (“Although we recognize that sensitive and weighty interests of national security and foreign affairs are implicated, the President must nonetheless exercise his executive power under § 1182(f) lawfully.” (quotation and citation omitted)).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. interest would be adversely affected if AMC §§ 5.20.020 and 5.20.050 were enforced against Hope Center.166 Accordingly, the public interest favors issuance of a preliminary injunction.

CONCLUSION In light of the foregoing, IT IS ORDERED as follows: Anchorage’s Motion for Federal Abstention at Docket 43 is DENIED. Anchorage’s Motion to Stay Proceedings Pending Resolution of Defendants’ Motion for Abstention at Docket 44 is DENIED as moot.

Hope Center’s Motion to Supplement or for Judicial Notice at Docket 79 is GRANTED as to Hope Center’s request to supplement the record. Hope Center’s Motion for Preliminary Injunction at Docket 29 is GRANTED with respect to its homeless shelter and IT IS ORDERED as follows: PRELIMINARY INJUNCTION

(1) This Order applies to all named Defendants, their officers, agents, servants, employees, attorneys, and those persons in active concert or participation with Defendants who receive actual notice of this Order. (2) The above-described Defendants and persons are temporarily enjoined from enforcing Anchorage Municipal Code § 5.20.050 and § 5.20.020 as applied

to the provision of overnight living space to homeless persons by Hope Center and

166 See Docket 34 (S.D. Decl.); Docket 35 (G.O. Decl.); Docket 36 (F.S. Decl.).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al. its agents, including its right to post its desired policies (including Exhibit 3 to the Verified Complaint), and to open its overnight shelter only to persons who were determined to be female at birth.

(3) The above-described Defendants and persons are enjoined from enforcing Anchorage Municipal Code § 5.20.050(A)(2)(b) as applied to the right of the Hope Center to post and discuss its desired policies (including Exhibit 3 to the Verified Complaint) with respect to its overnight homeless shelter. (4) This Preliminary Injunction is effective as of the date of this Order and

shall remain in place during this litigation unless and until the Court orders otherwise. (5) The Court issues this preliminary injunction without a bond or other security.167

DATED this 9th day of August, 2019, at Anchorage, Alaska. /s/ Sharon L. Gleason UNITED STATES DISTRICT JUDGE

167 Based on the Court’s evaluation of the public interest in this case, the Court waives the bond requirement. See Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005).

Case No. 3:18-cv-00190-SLG, Downtown Soup Kitchen v. Municipality of Anchorage, et al.