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Centro Tepeyac v. Montgomery County

March 15, 2011


The opinion of the court was delivered by: Deborah K. Chasanow United States District Judge


Several motions are presently pending in this action under the First and Fourteenth Amendments: (1) a motion to dismiss or, in the alternative, for summary judgment (ECF No. 5) filed by Defendants; (2) a motion for a preliminary injunction (ECF No. 6) filed by Plaintiff; and (3) a motion to strike (ECF No. 19) filed by Defendants. A hearing was held and the parties have briefed the issues. For the reasons that follow, Defendants' motion to strike will be denied, while their motion to dismiss will be denied in part and granted in part. Plaintiff's motion for a preliminary injunction will be granted in part and denied in part.


A.Factual Background

On February 2, 2010, Defendant Montgomery County Council, acting as the County Board of Health, passed Resolution Number 16-1252 ("the Resolution"). The Resolution requires "Limited Service Pregnancy Resource Centers" ("LSPRCs") to make certain disclaimers. (ECF No. 5-1). An LSPRC is defined within the Resolution as any "organization, center, or individual" that "(A) has a primary purpose to provide pregnancy-related services; (B) does not have a licensed medical professional on staff;*fn1 and (C) provides information about pregnancy-related services, for a fee or as a free service." (Id. at 2). The Resolution further defines "licensed medical professional on staff" as "one or more individuals" who:

(A) are licensed by the appropriate State agency under Title 8, 14, or 15 of the Health Occupations Article of the Maryland Code;

(B) provide medical-related services at the Center by either:

(i) providing medical services to clients at the Center at least 20 hours per week; or

(ii) directly overseeing medical services provided at the Center; and

(C) are employed by or offer services at the Center.

The Resolution obliges any LSPRC to post a sign in its waiting room that reads: (1) "the Center does not have a licensed medical professional on staff;" and (2) "the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider."*fn2

(Id.). The sign must be conspicuously posted, easily readable, and written in English and Spanish. (Id.). Violation of the Resolution is a Class A civil violation. (Id.). The Resolution may be enforced by a court action initiated by the County Attorney or a citation issued by the Department of Health and Human Services. (Id. at 3).

The County Council passed the Resolution after holding a public hearing on December 1, 2009. (Id. at 1). According to the Resolution's Background section, the evidence in the record led the County Council to conclude that "a disclaimer for certain pregnancy resources centers [was] necessary to protect the health of County residents." (Id.). In particular, the Council was concerned that: . . . clients may be misled into believing that a Center is providing medical services when it is not. Clients could therefore neglect to take action (such as consulting a doctor) that would protect their health or prevent adverse consequences, including disease, to the client or the pregnancy. (Id.).

Plaintiff Centro Tepeyac is a non-profit corporation that, according to the complaint, "discusses pregnancy options with women in . . . Montgomery County." (ECF No. 1 ¶ 11). Among other things, Centro Tepeyac provides "pregnancy testing, referral services, . . . confidential discussion of pregnancy options[,] . . . information on parenting and post-abortion guidance[,] . . . [and] practical support in the form of diapers, baby clothes, and other needed items." (Id. ¶ 12). Plaintiff does not refer for or provide abortions. (Id. ¶ 14). All services are offered free of charge. (Id. ¶ 13). Plaintiff considers itself an LSPRC. (ECF No. 1-6, at 6).

B.Procedural Background

On May 19, 2010, Plaintiff filed a complaint asserting two violations of 42 U.S.C. § 1983: deprivation of a First Amendment right and deprivation of a Fourteenth Amendment right. (ECF No. 1). The complaint included, among other things, a request for a preliminary injunction.*fn3 (ECF Nos. 1, at 12; 1-6). On June 3, 2010, Defendants filed an "opposition to motion for preliminary injunction and motion to dismiss or, in the alternative, for summary judgment." (ECF No. 5). Plaintiff filed a response to the motion to dismiss on June 17, 2010 via a paper that also served as its reply brief on the preliminary injunction motion. (ECF No. 17). In their own reply brief on the motion to dismiss on June 28, Defendants included a one-paragraph motion to strike several footnotes in Plaintiff's June 17 filing. (ECF No. 19). The court then held a hearing on all three motions on July 23, 2010. (ECF No. 23).

II.Motion to Strike

Defendants move to strike several footnotes in Plaintiff's opposition to the motion to dismiss. (ECF No. 19, at 6). The only provision allowing a motion to strike is Federal Rule of Civil Procedure 12(f). Rule 12(f) allows a court to strike certain matters "from a pleading." Defendants' motion to strike does not seek to strike any portion of a pleading, but rather certain footnotes in a memorandum opposing a motion. Under Rule 7(a), motions, memoranda, and the exhibits attached to them are not pleadings. See Manson v. Inge, 13 F.2d 567, 568 (4th Cir. 1926) (defining pleadings). Rule 12(f) may only address the papers listed in Rule 7(a). See, e.g., Hrivnak v. NCO Portfolio Mgmt, Inc., 723 F.Supp.2d 1020, 1029 (N.D.Ohio 2010) ("While some courts have employed Fed.R.Civ.P. 12(f) to strike an affidavit or a brief, or portions thereof, there is no basis in the Federal Rules for doing so."). Therefore, Defendants' motion to strike will be denied.

III.Motion to Dismiss

A.Standard of Review

Defendants have moved to dismiss pursuant to Rule 12(b)(6). (ECF No. 5). The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). At this stage, the court must consider all well-pleaded allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In addition to the complaint itself, a court may consider "any documents that are attached to it." CACA Int'l, Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009).

In evaluating the complaint, the court need not accept unsupported legal allegations. Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Nor must it agree with legal conclusions couched as factual allegations, Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). See also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not 'show[n] . . . that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).


1.Proper Defendants

The complaint asserts claims against Montgomery County, the Montgomery County Council, the Montgomery County Department of Health and Human Services, and Montgomery County Attorney Marc Hansen. The claims against the Department of Health and Human Services must be dismissed because that department is not a separate, legally cognizable unit capable of being sued. Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 874 (4th Cir. 1989). Rather, it is simply an agency of the county. Menefee v. State, 12 A.3d 153, 158-61 (Md. 2011). The claims against Mr. Hansen must also be dismissed. A suit against a government agent in his official capacity is treated as a suit against the governmental unit itself. Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Such a claim is duplicative when the governmental entity itself is a defendant. Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004); accord Sheaffer v. Cnty. of Cheatham, 337 F.Supp.2d 709, 721 (M.D.N.C. 2004). Thus, two defendants will remain: Montgomery County and the Montgomery County Council.*fn4

2.First Amendment Claim

Plaintiff attacks the Resolution on several First Amendment grounds. Among other things, Plaintiff argues that the Resolution is a content-based restriction on speech, that it amounts to viewpoint-based discrimination, that it is an unconstitutional prior restraint, that it inappropriately compels speech, and that it is unconstitutionally overbroad. At this point, it is unnecessary to address each of the individual allegations; it is enough to say that the complaint states a claim that the Resolution unconstitutionally compels speech.

"[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977). In several cases spanning almost 70 years, the Supreme Court has found violations of the First Amendment where private individuals are forced to propound government-dictated messages. See, e.g., id.; Miami Hearld Publ'g Co. v. Tornillo, 418 U.S. 241 (1974); Talley v. California, 362 U.S. 60 (1960); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). These cases reflect a concern that, in compelling speech, "the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).

a.Level of Scrutiny

All parties would seem to agree that the Resolution requires Plaintiff to say something it might not otherwise say. Because "[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech," laws that compel speech are ordinarily deemed "content-based regulation[s] of speech" subject to strict scrutiny. Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988); see also Turner Broad., 512 U.S. at 642 ("Laws that compel speakers to utter or distribute speech bearing a particular message are subject to . . . rigorous scrutiny."). There are situations -- exceptions to the general rule - when strict scrutiny will not apply. For example, a lesser degree of scrutiny applies when the only speech involved is commercial speech. See generally Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S.Ct. 1324 (2010) (applying rational basis standard); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) (same). "Exacting scrutiny" applies to compelled disclosures and reporting in the campaign finance context. See Citizens United v. Fed. Election Comm'n, 130 S.Ct. 876, 914 (2010); see also N.C. Right to Life Comm. Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427, 439 (4th Cir. 2008) (distinguishing between "strict scrutiny" and "exacting scrutiny"). And if a law compels speech for reasons entirely unrelated to content, an intermediate level of scrutiny would seem to apply. Turner, 512 U.S. at 662 (plurality opinion).*fn5

Defendants contend that this case presents another instance where strict scrutiny should not apply. Drawing from two lines of cases -- commercial disclosure cases and professional disclosure cases -- they argue that truthful and purely factual disclosure laws do not merit strict scrutiny. They characterize the Resolution as nothing more than such a permissible factual disclosure requirement. Even assuming that the Resolution could be called a factual disclosure requirement,*fn6 the two categories of cases relied upon by Defendants do not justify use of a lower level of scrutiny.

First, the speech implicated in this case is not commercial speech and commercial speech concepts cannot be extended to this context.

Commercial speech is "expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 561 (1980). Specifically, it is "speech that 'proposes a commercial transaction.'" Adventure Commc'ns, Inc. v. Ky. Registry of Election Fin., 191 F.3d 429, 440 (4th Cir. 1999) (quoting Board of Trustees v. Fox, 492 U.S. 469, 473 (1989)) (brackets removed). Commercial speech is often regarded as being less entitled to First Amendment protection than noncommercial speech. United States v. United Foods, Inc., 533 U.S. 405, 409 (2001); Zauderer, 471 U.S. at 637; Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 64-65 (1983); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978). Because commercial speech "is linked inextricably with the commercial arrangement that it ...

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