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Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, Nos. 11-1111, 11-1185 (en banc)

Decided: July 3, 2013

A majority of the Fourth Circuit, sitting en banc, vacated the judgment of the district court, which granted summary judgment to Plaintiffs Greater Baltimore Center for Pregnancy Concerns, Inc., St. Bridgid’s Roman Catholic Congregation and its Archbishop and permanently enjoined the enforcement of a City of Baltimore Ordinance.   The Ordinance at issued required limited-service pregnancy centers to post disclaimers that the center does not provide or make referrals for abortions or certain birth-control services.  The Plaintiffs argued that the Ordinance was facially invalid under the Free Speech Clause of the First Amendment.  The decision, according to the majority, was based on what it deemed was a summary judgment decision “laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure.”  In addition, the majority affirmed the district court’s ruling that the St. Bridgid’s Roman Catholic Congregation, Inc. lacked standing to be co-plaintiffs with the Greater Baltimore Center for Pregnancy Concerns.

The Ordinance at issue was passed by the City of Baltimore City Council (“the City”) in November 2009 and required pregnancy centers that did not offer abortions or birth control to display signs that indicated as such and post them in a conspicuous place in the center’s waiting room or other waiting area. The City offered a rationale that such centers had provided misleading information and the City had a vested interest in protecting the public health by ensuring honest advertising of services and that the limited-service pregnancy centers pose a threat to the public health.  The Ordinance vests enforcement power with the City Health Commissioner who can issue violation notices and if the center fails to comply with the notice, the Commissioner can issue a civil citation.  The Commissioner is also given the authority to pursue criminal or civil remedies against the violating center.  The constitutionality of the Ordinance was challenged by the Greater Baltimore Center for Pregnancy Concerns (the “Center”), which qualifies under the Ordinance as a limited-service pregnancy center, and the St. Bridgid’s Roman Catholic Congregation and its Archbishop.  The plaintiffs shared religious beliefs that caused them to oppose abortion and certain forms of birth control and their Complaint alleged that the Ordinance violated their First Amendment rights of free speech, free assembly, and the free exercise of religion, plus the Fourteenth Amendment’s guarantee of equal protection and Maryland’s statutory “conscience clause.”

According to the majority, before the City had answered the Complaint, while still having four days left to do so, the plaintiffs filed a motion for partial summary judgment under FRCP 56.  The plaintiffs asserted that the strict scrutiny standard applies and cannot be satisfied because the Ordinance fosters “viewpoint discrimination” against “pro-life pregnancy centers” and compels those centers to engage in government-mandated speech.  A few days later, the City filed a motion to dismiss the Complaint pursuant to FRCP 12(b)(6) or, in the alternative, to dismiss the claims of St. Brigid’s and the Archbishop for lack of standing.   After the district court issued a Scheduling Order, the plaintiffs filed a response to the City’s motion to dismiss and the City submitted a reply concerning its dismissal motion, combined with a response of plaintiffs’ motion for summary judgment.  The City asserted in its response to plaintiffs’ motion for summary judgment that the summary judgment request was premature and that it needed more time to engage in further discovery to fully develop its claims and rebut the plaintiffs’ assertions.

At a motions hearing, the plaintiffs argued that there challenge to the Ordinance was a “facial challenge” and, as such, no further discovery was needed.  The district court agreed that further discovery was unnecessary for a facial review of the Ordinance, though it allowed the City to enter the Ordinance’s entire legislative record into evidence.  The district court promised the City that discovery would be authorized before the court engaged in any “as-applied” analysis of the Ordinance.  After review of the record, the court issued its summary judgment decision and permanent injunction without allowing the City any further discovery.  In its decision, the district court determined that because the City had submitted materials beyond the plaintiffs’ Complaint – i.e., the legislative record – it was correct to treat the City’s motion to dismiss as a cross motion for summary judgment and it rejected the City’s arguments that rational basis scrutiny should apply because the Ordinance was directed at misleading commercial speech.  In applying the strict scrutiny standard, the district court had no issue striking down the Ordinance as unconstitutional on First Amendment grounds.  Notably, the district court also ruled early in its decision that St. Brigid’s and the Archbishop lacked standing to be co-plaintiffs in the case because they could not make the required showing of “the existence of concrete and particularized injury in fact.”

First, the Fourth Circuit summarily agreed with the district court that St. Bridgid’s and the Archbishop lacked standing to be co-plaintiffs.  Next, and more importantly, a majority of the Fourth Circuit vacated the district court’s decision on largely procedural grounds.  The court pointed to several procedural mistakes made by the district court as the court, in the words of the majority, “rushed to summary judgment.”  The court found serious errors with the district court’s denial to the City of necessary discovery, its refusal to view in the City’s favor the evidence presented, and its “verboten factual findings, many premised on nothing more than its own supposition.”  The majority of its decision was focused on the district court’s refusal to afford adequate discovery to the City and rejected the district court’s theory that because it was ruling on a facial challenge to the Ordinance, then greater discovery was not warranted.  The majority also held that the district court “flouted the well-known and time-tested summary judgment standard” when it did not afford all justifiable inferences in the City’s favor, especially with respect to the City’s commercial speech and rational basis theory and that the court engaged in findings based on its own assumptions about the facts.  As a result, the Fourth Circuit vacated the district court’s grant of summary judgment and the permanent injunction against enforcement of the Ordinance and remanded the case back to the district court for further proceedings in line with the Federal Rules of Civil Procedure.

Full Opinion

– John G. Tamasitis