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Young v. Ricketts

United States District Court, D. Nebraska

January 28, 2015

LESLIE RAE YOUNG, Plaintiff,
v.
PETE RICKETTS, Governor of the State of Nebraska, in his official capacity; DOUG PETERSON, Attorney General of Nebraska, in his official capacity; JOHN A. GALE, Secretary of State & Chairperson of the Nebraska Real Estate Commission, in their official capacities; GREG LEMON, Director of the Nebraska Real Estate Commission, in their official capacities; AL AVERY, in their official capacities as members of the Nebraska Real Estate Commission; DREW STANGE, in their official capacities as members of the Nebraska Real Estate Commission; VINCENT LEISEY, in their official capacities as members of the Nebraska Real Estate Commission; ROBERT DOVER, in their official capacities as members of the Nebraska Real Estate Commission; KATHRYN ROUCH, in their official capacities as members of the Nebraska Real Estate Commission; and DAVID PTAK, in their official capacities as members of the Nebraska Real Estate Commission; Defendants

For Leslie Rae Young, Plaintiff: Anastasia P. Boden, Timothy M. Sandefur, PRO HAC VICE, PACIFIC LEGAL FOUNDATION, Sacramento, CA.

For John A. Gale, Secretary of State & Chairperson of the Nebraska Real Estate Commission, in their official capacities, Greg Lemon, Director of the Nebraska Real Estate Commission, in their official capacities, Al Avery, in their official capacities as members of the Nebraska Real Estate Commission, Drew Stange, in their official capacities as members of the Nebraska Real Estate Commission, Vincent Leisey, in their official capacities as members of the Nebraska Real Estate Commission, Robert Dover, in their official capacities as members of the Nebraska Real Estate Commission, Kathryn Rouch, in their official capacities as members of the Nebraska Real Estate Commission, David Ptak, in their official capacities as members of the Nebraska Real Estate Commission, Pete Ricketts, Governor of the State of Nebraska, in his official capacity, Doug Peterson, Attorney General of Nebraska, in his official capacity, Defendants: Adam J. Prochaska, Christopher R. Heinrich, HARDING, SHULTZ LAW FIRM, Lincoln, NE.

Page 1093

MEMORANDUM AND ORDER

Joseph F. Bataillon, Senior United States District Judge.

This matter is before the Court on defendants' motion for summary judgment, Filing No. 151, and plaintiff's motion for summary judgment and request for hearing, Filing No. 153 and Filing No. 156. The Parties have agreed that this case can be submitted for final judgment, based on the summary judgment motions, the pleadings and the supporting evidence. See Filing No. 168. Plaintiff filed this lawsuit alleging her First and Fourteenth Amendment rights are violated by the licensing requirements of Neb. Rev. Stat. § 81-885.01(2) and 299 Neb. Admin Code § 2-004.[1] The court is only asked to address the constitutionality of the statute in question and to find prospective injunctive relief in this case.

BACKGROUND

This case involves a challenge to recent amendments to the Nebraska Real Estate License Act, Neb. Rev. Stat. § 81-885 (2010) (" the Act" ) under 42 U.S.C. § 1983. Plaintiff says the Act violates her Free Speech, Due Process, Equal Protection, and Privileges or Immunities Clause rights under the First and the Fourteenth Amendments of the United States Constitution. See Filing No. 91, First Amended Complaint. Defendants Pete Ricketts in his official capacity as the Governor of Nebraska; Doug Peterson, in his official capacity as the Attorney General of Nebraska; John Gale, in his official capacity as Chairperson of the Nebraska Real Estate Commission; Greg Lemon, Director of the Nebraska Real Estate Commission, in his official capacity; Al Avery, Drew

Page 1094

Strange, Vincent Leisey, Robert Dover, Kathryn Rouch, and David Ptak, in their official capacities as members of the Nebraska Real Estate Commission (hereafter collectively " the defendants" ), move for summary judgment pursuant to Fed.R.Civ.P. 56.

The court made the following factual summary in its preliminary order on the request for injunction, and the facts are not substantially different for purposes of this motion:

The evidence shows that the plaintiff has posted Nebraska listings on Awww.realtor.com@ which advertises itself as the Official Site of the National Association of REALTORS, and on www.forsalebyowner.com. See Filing No. 30 at pp. 3-56. Affidavit of Greg Lemon (" Lemon Aff." ), Exhibit (Ex.) 1, Exs. A & B. The plaintiff is licensed as a real estate broker in California, but not in Nebraska. See Filing No. 12-1, Index of Evid., Ex. 1, Declaration of Leslie Ray Young (" Young Decl." ). She owns and operates the Internet website, " www.elist.me." Id. A Nebraska State Real Estate Commission investigation showed Young was listing Nebraska properties for sale via that website. Filing No. 30, Lemon Aff. at 3-4, and attachments. Such listings stated " Presented by Leslie Young" and contained hyperlinks that allowed the user to e-mail the agent, visit the agent's website and view the agent's other listings. Id. at 1-2. Realtor.com's Internet site contains certain template language that appears on each advertisement (for example: " email agent," " agent's other listings," " this listing brokered by" ) that cannot be altered by the plaintiff. Filing No. 31 at p.3, Supplemental Decl. of Leslie Rae Young. The information about the plaintiff that is included with the advertisement of a home on Realtor.com is obtained by Realtor.com from the data entered into a multi-state listing service (" MLS" ) of which the plaintiff is a member. Id.. At or near the time of the hearing, the plaintiff had 14 Nebraska clients. Filing No. 36 at p.1, Supplemental Decl. of Leslie Rae Young. The plaintiff contracts with Nebraska residents to list their homes and receives remuneration for doing so. Id. at 1-2.
On March 11, 2010, and July 20, 2010, the Nebraska Real Estate Commission issued cease and desist orders and sent them to Young. Filing No. 30 at p.3, Lemon Aff.; Exs. A & B. The cease and desist orders specifically refer to advertising for sale of real property located in the state of Nebraska. Id. They also advise the plaintiff that the order would become final in ten days unless she requested a hearing before the Commission, and referred to a civil fine of $1,000.00 per day. Id.
The challenged amendment to the Nebraska Real Estate Licensing Act added language indicating that committing any of the acts listed in the statute under the Act's definition of broker would constitute sufficient contact with the state to confer personal jurisdiction.... She also contends that the only remedy available to a person who receives the cease-and-desist order is to request an administrative hearing, which does not allow or provide relief based on a constitutional challenge to the statute, and consequently forego constitutional protections and waive personal jurisdiction challenges.

Memorandum and Order, Filing No. 55, at 2-4.

Plaintiff is a resident of Volcano, California.... The plaintiff's listings include pictures and descriptions of various Nebraska properties, and plaintiff is listed as an " advertising broker" and as a " listing broker."

Page 1095

Plaintiff agrees that she assists persons who wish to sell their properties on a " for sale by owner" basis without using a real estate agent. She assists with preparation of advertisements and puts these ads in a computer program which sends the ads to the Internet websites that publish them. She argues she does not negotiate prices, show homes, counsel the buyers or sellers, or interact with the homebuyers directly. She does not receive a commission for the sale. She is paid a flat fee for her advertising services, regardless of whether a home sells or not.
....
In this lawsuit, plaintiff requests prospective relief only. She does not ask this court to address any of the previously decided issues but only to stop the prosecution of her under the Nebraska statute. She argues this is a prior restraint and is a content-based restriction on her free speech rights and the law subjects her to civil and criminal penalties. Further, she alleges that her equal protection rights are violated, as she is unable to engage in Internet advertising, but newspapers, radio and television advertisers, publishing " for sale by owner" advertisements, are permitted to do so. Finally, she contends this violates the privileges and immunities clause by barring her from engaging in her chosen profession.

Filing No. 102, at 3-4, Memorandum and Order.

The plaintiff initially filed a motion for a temporary restraining order. Filing No. 7. The Court granted the motion, and the Court later granted an amended temporary restraining order and second amended restraining order. Filing No. 23, Filing No. 33 and Filing No. 37. Subsequently, the Court issued a memorandum and order denying plaintiff's motion for a preliminary injunction and dissolved the temporary restraining order. Filing No. 55. Defendant then filed a motion to dismiss, Filing No. 94, which this Court denied, finding that it would abstain from deciding the case until such time as the state action was completed. Filing No. 102. The plaintiff thereafter moved to lift the stay. The Court lifted the stay finding that the State of Nebraska had fully addressed it at that point. Filing No. 110. Defendants then moved to dismiss again, Filing No. 112, and this Court denied the same. Filing No. 118.

STANDARD OF REVIEW

Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " The movant 'bears the initial responsibility of informing the district court of the basis for its motion, and must identify 'those portions of [the record] .... which it believes demonstrate the absence of a genuine issue of material fact.'" Torgerson v. City of Rochester, 643 F.3d 1031, 1042, (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). If the movant does so, " the nonmovant must respond by submitting evidentiary materials that set out 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting Celotex, 477 U.S. at 324).

Page 1096

" The inquiry performed is the threshold inquiry of determining whether there is the need for a trial --whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A " genuine" issue of material fact exists when " there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 251-52 (1986) (noting the inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law). If " reasonable minds could differ as to the import of the evidence," summary judgment should not be granted. Id. at 251.

The evidence must be viewed in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). " In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations." Id. " Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate." Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004).

A filing of cross-motions for summary judgment does not " necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits." Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983). Consequently, " [w]here conflicting inferences as to a material fact may reasonably be drawn from the ...


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