In Davis v. City of Selma (ED CA 2013), Stephanie Davis, a 30-year old wife and mother who is a palm-reading fortune-teller, sued the City of Selma, California alleging violations of her rights under the U.S. Constitution, RLUIPA, and the California Constitution.  At issue was the Selma Municipal Code’s (the “SMC”) prohibition against fortune-telling without a license.  Because Davis filed her suit before seeking a fortune-telling license, the District Court dismissed her claims for lack of ripeness.

Davis claimed that her fortune-telling business, which she characterized as “spiritual counseling,” was a form of religious exercise:

Ms. Davis' spiritual counseling activities are founded on and motivated by her fundamental religious principles and beliefs. Ms. Davis has practiced spiritual counseling for twelve (12) years. Ms. Davis utilizes a variety of methodologies and techniques that are tailored to the client's specific spiritual needs and goals. Ms. Davis sincerely believes in a counseling method that involves palm, angel cards, spiritual readings, astrology and clairvoyant and medium abilities. Ms. Davis' spiritual counseling involves religious beliefs, exercise of these beliefs and expressive activity that includes opinions that are sincerely held by her.

Davis believed that her religious beliefs and practice qualified her as a “fortune teller” under the SMC, requiring that she obtain a license to offer her services within the City.  The SMC defines “fortune telling” as “the practice of astrology for compensation, palmistry, phrenology, life reading, fortune telling, cartomancy, clairvoyance, clairaudience, crystal gazing, medium shift, prophecy, augury, divination, necromancy, and graphology.” 

Seeking to tell fortunes within the City, Davis began the application process to do so, but shortly thereafter abandoned that process.  Davis alleged that the SMC’s fortune-telling license requirement was “unduly burdensome, intrusive and restrictive” because it caused her to self-censor herself by abandoning the application process.

Federal Constitution Claims

To determine whether Davis’s constitutional claims were ripe for judicial review, the District Court looked at three factors: (1) whether she has a concrete plan to violate the law; (2) whether she has been threatened with enforcement proceedings; and (3) the history and prior prosecution under the challenged ordinance.  Recognizing that these requirements are applied less stringently in the First Amendment context, the District Court observed that “a plaintiff does not need to wait until a threatened injury is consummated before challenging a statute that allegedly restricts protected conduct.”

Davis failed to satisfy the first factor because she never claimed any concrete plan to operate a fortune-telling business in the City.  Rather, Davis asserted that some of her clients requested that she tell fortunes in the City.  Likewise, Davis failed to satisfy the second factor because she did not allege she had been threatened with prosecution if she opened a fortune-telling business in the City without a license or even that prosecution was likely or possible if she did so.  The District Court did not consider the third factor because it found the first two weighed in favor of a finding of lack of ripeness.

RLUIPA Claims

The District Court observed that before Davis’s RLUIPA claims would be subject to the ripeness test set forth in Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), it must first apply the “relaxed” ripeness test, as applied in Murphy v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir. 2005), to evaluate whether her RLUIPA claims were ripe for review.  Under this “relaxed” ripeness test, a court will find a plaintiff’s RLUIPA claim ripe for review if (1) governmental action has caused a plaintiff to suffer an immediate injury and (2) the pursuit of additional remedies will not further define a plaintiff’s alleged injuries.  If a plaintiff is unable to satisfy the “relaxed” ripeness test, the Williamson County ripeness test is applied to determine ripeness.

The District Court found that Davis neither alleged nor suffered an immediate injury.  It further concluded that Davis failed to satisfy the second requirement of the “relaxed” ripeness test because applying for a fortune-telling license could further define any injuries she may suffer.

Because Davis was unable to satisfy the requirements of the “relaxed” ripeness test, the Court examined whether her RLUIPA claims were ripe under the Williamson County test, which requires a “final decision” before a claim is deemed ripe.  The Court explained:

The Williamson County final decision requirement calls for a final adjudication of the injury at the local level prior to filing a federal claim. The final decision requirement is a ripeness consideration because it helps the court avoid entanglement in abstract disputes which could be more easily resolved at a local level.  The final decision requirement gives the court a fuller record on which to base its decision. As it is the only way the court can know how an ordinance will be applied to a person or property, a final decision at a local level may provide the plaintiff's relief without requiring the court to engage in unnecessary constitutional analysis, and it accords with principles of federalism by allowing local disputes to be resolved at a local level.

Davis failed to satisfy the Williamson County ripeness test because she had not received a final decision on her fortune-telling license application, as she had not yet applied for a license.  The District Court also rejected Davis’s argument that applying for a fortune-telling license would be an act of futility, which is an exception to the final decision requirement of Williamson County.  The futility exception applies when it would be highly improbable – nearly certain – that a plaintiff would be unable to obtain government approval.  Davis’s argument that to apply for a license would be futile because it is “unduly burdensome” did not establish that pursing a fortune-telling license would be an act of futility.  As the Court observed, “[s]uch an allegation hardly indicates seeking a final decision would be a futile endeavor.”

State Constitution Claim

The District Court declined to exercise supplemental jurisdiction over Davis’s remaining claim taken under the California Constitution: “the Supreme Court has stated if ‘federal claims are dismissed before trial . . . state claims should be dismissed as well.’”  (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)).

Tags: Federal District Court Decisions
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Read more about Evan Seeman
Show more Show less
Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

Show more Show less
Related Posts
 Coffee Shop Church’s Claims Survive Motion to Dismiss, City Amends Code to Permit Use
October 18, 2018
 Christian School’s Claims Dismissed as Unripe Under Midrash Sephardi
April 19, 2018
Original Photography by Anthony Auston ( some rights reserved
Church’s RLUIPA Claims Unripe and Moot, Says Federal Court
February 21, 2018