United States District Court, D. Idaho
For Edward Watters, Steven Farnworth, Dean Gunderson, Matthew Alexander Neiwirth, Occupy Boise, an Idaho unincorporated nonprofit association, Plaintiffs: Richard Alan Eppink, LEAD ATTORNEY, American Civil Liberties Union of Idaho Foundation, Boise, ID; Bryan Keith Walker, Obsidian Law, PLLC, Boise, ID.
For C.L. (Butch) Otter, in his official capacity as the Governor of the State of Idaho, Defendant: Carl J Withroe, LEAD ATTORNEY, Idaho Attorney General, Boise, ID; Clay R Smith, LEAD ATTORNEY, Michael S Gilmore, OFFICE OF ATTORNEY GENERAL, Boise, ID; Thomas C. Perry, Office of the Governor, Boise, ID.
For Teresa Luna, in her offical capacity of the Director of the Idaho Department of Administration, Ralph Powell, Col., in his official capacity as the Director of the Idaho State Police, Defendants: Carl J Withroe, LEAD ATTORNEY, Idaho Attorney General, Boise, ID; Clay R Smith, LEAD ATTORNEY, Michael S Gilmore, OFFICE OF ATTORNEY GENERAL, Boise, ID.
MEMORANDUM DECISION AND ORDER
B. Lynn Winmill, Chief United States District Judge.
The Court has before it a motion to dismiss filed by the State and a motion for partial summary judgment filed by plaintiffs (referred to collectively as Occupy). The Court heard oral argument on June 10, 2014, and took the motions under advisement. For the reasons explained below, the Court will grant both motions.
Motion to Dismiss
In December of 2013, this Court ruled tat seven rules targeting Occupy violated the First Amendment. See Memorandum Decision (Dkt. No. 122). A few months later --while this case was pending and before any judgment was entered -- the 2014 Idaho Legislature struck down all seven rules finding that they were " not consistent with legislative intent and should be rejected." See H. Concurrent Resolution Nos. 47 & 48 (62nd Legis., 2d Reg. Sess. 2014).
The State now seeks to dismiss Occupy's challenge to these seven rules on the ground that the dispute is moot. The precise issue arose earlier when the 2013 Legislature struck down the hours-limitation rule, and the Court declared the dispute moot:
In this case, the Legislature has rejected the hours-limitation provision outright. Thus, the likelihood that the Department will reinstate the hours' limitations is almost nil. Therefore, Occupy Boise's challenge to the hours-limitation provisions is moot.
Memorandum Decision, supra, at p. 37; see also Bell v. City of Boise,709 F.3d 890, 899 (9th Cir. 2013) (holding that " a statutory change . . . is usually enough to render a case moot, even if the legislature possesses the power to ...