Carcaño: Motions hearing June 25, 2018

CARCAŇO v. COOPER
June 25, 2018; Chief Judge Thomas D. Schroeder presiding

Hearing on motions to dismiss by University of North Carolina defendants and legislative intervenor-defendants.
See HERE for briefing on the motions.

ATTORNEYS:
Arguing for legislative Intervenor-Defendants: Stephen Schwartz (Schaerr | Duncan LLP)
Also appearing: Gene Schaerr, Robert Potter (Schaerr | Duncan)
Arguing for University of North Carolina defendants: Vivek Suri (Jones Day)
Also appearing: Kristen Legnieks (Jones Day); Carolyn Pratt, Thomas Shanahan (UNC Legal Affairs)
Arguing for Plaintiffs: Chase Strangio (ACLU)
Also appearing: James Esseks, Christopher Brook (ACLU)
Appearing for State Defendants: Olga Vysotskaya De Brito (NC Dept. of Justice)

(Jason Hewett, reporting for Equality Case Files)
LEGISLATIVE INTERVENOR-DEFENDANTS
The hearing began with Stephen Schwartz arguing for the legislative Intervenor-Defendants. “This is a lawsuit looking for a reason to exist,” he began. He went immediately into a discussion of plaintiffs’ standing to bring the case. One prong for standing is whether there is injury to the plaintiffs. He said plaintiffs had two arguments on injury. The first points to the uncertainty HB142 causes with regards to restroom access. Schwartz argued that, even if there is uncertainty, there could be no redress from this suit. The uncertainty comes from state laws other than HB 142 so that even if HB 142 were enjoined, the alleged uncertainty would not go away.

Judge Schroeder then went through a series of questions on whether the governor had the authority to interpret laws such as the state’s trespass law (trespass was one law held up as a source of possible injury). These questions centered around a proffered consent decree between the plaintiffs and the executive branch defendants which will be taken up if the case is allowed to continue. The judge suggested that an executive order could be issued, and Mr. Schwartz agreed but countered that it would not have the force of law behind it. The intervenors stated that plaintiffs weren’t challenging trespass law in this case. If HB 142 were stricken, as is being requested, the trespass laws would still stand. All HB 142 does is place the question of restroom access in the hands of the legislature.

From here, Mr. Schwartz addressed plaintiffs’ second asserted source of injury: injury due to an inability to approach municipalities for access policies. He said that HB 142 is evenhanded in that all parties must approach the legislature on this issue – including the proponents of HB 2 which was repealed by HB 142.

“What test should I apply?” asked Judge Schroeder. Mr. Schwartz replied, “This is a standing issue. The Supreme Court said (in Lujen) that plaintiffs must show standing.”

Mr. Schwartz, turning from the discussion of standing to his argument that plaintiffs claims were not ripe, said that plaintiffs have alleged no facts indicating a particular injury. He ended by saying that plaintiffs were “targeting HB 142 to blow up a complex policy issue into a political win.”

UNIVERSITY OF NORTH CAROLINA DEFENDANTS
Next up was Vivek Suri, on behalf of the University of North Carolina (UNC) defendants. Mr. Suri began by stating that the UNC defendants didn’t enact HB 142; they have no authority to enforce HB 142; they can not repeal or alter the operations of HB 142; and, finally, they can provide no relief to the plaintiffs in this suit. For these reasons, they are asking to be dismissed from the case.

Judge Schroeder asked if UNC has the authority to say who could use what restrooms and was told that HB 142 effectively took away that authority. The judge then asked if there has been any legal interpretation of section 2 of HB 142 (which places regulatory control of facilities access with the General Assembly). Mr. Suri was unaware of any specific interpretations beyond a statement by the governor that transgender individuals would not be trespassing when using facilities corresponding with their gender identity. He was also unaware of whether or not the governor could preempt HB 142. “Even if the governor can, the University can’t.”

Mr. Suri affirmed that the campus police are charged with responding to calls of trespassing on campus but that this case is not brought against the trespass law. In fact, the university is preempted by HB 142 from “telling [transgender individuals] to stay out” of particular facilities.

STATE OF NORTH CAROLINA (EXECUTIVE BRANCH) DEFENDANTS
Olga Vysotskaya De Brito appeared on behalf of the state defendants, but did not participate in argument. She noted that there were motions on which the state defendants had not yet briefed but would like to reserve the right to do so.

PLAINTIFFS
Chase Strangio, on behalf of the plaintiffs, began by asserting that, despite the intervenors’ claims, plaintiffs had suffered injuries directly traceable to HB 142 because it provided no clarity on plaintiffs’ restroom access.

Judge Schroeder interrupted almost immediately. He said that the plaintiffs had first asked him to enjoin HB 2, saying it upset the status quo. He noted plaintiffs are not disputing the labeling of men’s and women’s restrooms (Mr. Strangio agreed). Judge Schroeder said, “before HB 2, men’s and women’s rooms were labeled. HB 2 defined those labels. Now HB 142 eliminates the definitional aspects of HB 2. How is this an injury?” A very lively back and forth followed in which the judge sought to nail down the details of plaintiffs’ specific complaints against the statute.

Judge Schroeder also followed up on the UNC defendants’ arguments for dismissing them from the suit. When asked about the UNC defendants’ claim that section 2 of HB 142 does not allow them to interpret the law, Mr. Strangio responded that section 2 prevents plaintiffs from being authorized to use the restrooms based on gender identity. Where before they could petition municipalities for access, this is now left entirely to the state legislature, and the legislature has taken no action. This has caused injurious uncertainty in that plaintiffs have had to alter their behavior because they fear consequences from HB 142.

Mr. Strangio stated that HB 142 is the barrier and the source of plaintiffs’ injury. Section 2 prohibits any regulation aside from the state legislature. The only difference in status quo from before HB 2 and now is transgender individuals’ access to facilities. UNC won’t state what restrooms Mr. Carcano can use. He faces the possibility of arrest for trespass. Mr. Strangio then stated, “an individual need not face arrest for standing to be present.” Further, if the letter of HB 142 were to be followed, signs designating men’s and women’s rooms should be taken down (because the designating of restrooms itself is an act of the UNC interpreting HB 142). Plaintiffs are not arguing for this, he said, but bring it up as being instructive of the idea that UNC is interpreting HB 142 despite its claims to the contrary.

Judge Schroeder then asked if there is anything in the language of HB 142 that prohibits the plaintiffs from using the restroom of their choosing. Mr. Strangio replied, “No, but the reality of the alleged injury of HB 142 is in practice” – that state actors may go back to denying plaintiffs the authority to use chosen restrooms. The judge questioned whether plaintiffs face the same issue in other states without specific protections. Mr. Strangio said that the specific injury at issue was a result of North Carolina law – an injury that was redressable by striking down HB 142. Judge Schroeder: “if I strike everything down and the plaintiff goes back to UNC, can he use” the men’s room? Mr. Strangio stated that if everything were stricken, the university could then negotiate that.

DEFENDANTS’ REBUTTAL
Mr. Suri, for the UNC defendants: Plaintiffs haven’t asked for authorization to use specific restrooms. A person doesn’t generally need permission to perform an action; it is up to the government to put prohibitions on actions. He reiterated that the University doesn’t provide permissions or place prohibitions and it should be dismissed from this suit.

Mr. Schwartz, for the legislative intervenors:  Because plaintiffs lack standing, the court needn’t rule on their arguments on the merits. “You can always ask for more clarification, but the wish for it is not enough to create injury.” HB 142 repeals HB 2. Everyone must go to the legislature for questions of access to facilities. That is the definition of equal treatment. The only difference in the status quo before HB 2 and now (with HB 142) is that “Mr. Carcano cannot get a permission slip” to the restroom of his choice. Plaintiffs aren’t even asking for permission to use their chosen restrooms in this suit.

Judge Schroeder, countering this last assertion, noted  “Paragraph D of the prayer for relief states ‘Requiring Defendants in their official capacities to ensure the ability of individuals, including transgender people, to use single-sex, multiple-user facilities in accordance with their gender identity without fear of arrest or other penalty…’ so they are asking for it.”  The judge then addressed Mr. Strangio (plaintiffs’ attorney) and asked if there was a request to grant specific restroom use, to which Mr. Strangio replied there was no request for “something mandatory.”

The judge then asked Mr. Strangio whether the challenge was facial or as applied. Strangio replied it was facial, offering a number of arguments to back up the assertion. But Judge Schroeder continued to press, asking repeatedly, “but isn’t that as applied?” It wasn’t clear (to me) whether Mr. Strangio ever provided a response that satisfied Judge Schroeder.

The hearing ended with housekeeping. Judge Schroeder stated that he would resolve the motions to dismiss and then the parties would in future address the consent decree if necessary. He thanked everyone for their participation and said he would rule as soon as possible but gave no indication of a time frame.