Thanks, Greg. Will Baude also raised the Pennhurst issue with me offline, and I agree that it provides a very good reason for Stormans not to have brought the state law claim in the federal court lawsuit.
That said, given that the Washington constitution has been interpreted to provide broader protection to religious exercise than the federal constitution, I do wonder why Stormans chose to prioritize exclusively pursuing a federal lawsuit, even after the Ninth Circuit's decision in 2009 that the pharmacy rules should only be subject to rational basis review under the federal constitution. Of course, the choices left to litigants by Pennhurst can be tough, particularly if such litigants cannot utilize an England reservation in state court to preserve their ability to litigate the federal issues in federal court. In the past, the Ninth Circuit has held that litigants can utilize an England reservation in bifurcated litigation resulting from a Pennhurst bar, UPS v. Cal. Pub. Utilities Comm'n, 77 F.3d 1178, 1182-1186 (9th Cir. 1996), but Will has pointed out to me that a portion of the Supreme Court's subsequent opinion in San Remo Hotel v. San Francisco, 545 U.S. 323 (2005), could be read as inconsistent with the England analysis in UPS. So, at the end of the day, while I might have made a different strategic choice based on my perception that there was a stronger state law claim than federal law claim in the case, as well as my perception that the Washington Supreme Court would be no less hospitable to Stormans federal claim than the Ninth Circuit, I can understand why Stormans might choose to forgo bringing a state lawsuit to avoid the possibility of a state court decision precluding their ability to litigate the federal issue in federal court. And given Stormans' success in the district court, and the fact that they came within one vote of getting cert using the federal court vehicle, perhaps their strategic choice was the right one. - Jim On Tue, Jun 28, 2016 at 8:21 PM, Gregory S. Baylor <gbay...@adflegal.org> wrote: > In *Pennhurst*, the Supreme Court held that the Eleventh Amendment > forbids federal courts from awarding injunctive relief against state > officials on the basis of state law. > > > > This rule did not apply in *Merced*, where the plaintiffs sued municipal > officials. > > > > Greg Baylor > > > [image: Alliance Defending Freedom] <http://www.adflegal.org/> Gregory > S. Baylor > Senior Counsel, Director of Center for Religious Schools > 202-393-8690 (Office) > 202-888-7628 (Direct Dial) > 202-347-3622 (Fax) > gbay...@adflegal.org > ADFlegal.org > Not Licensed in DC > Practice Limited to Federal Court > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Tuesday, June 28, 2016 9:48 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Why didn't Stormans bring a state free exercise claim? > > > > Like the plaintiff in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), I > believe the owners of Stormans could have brought both (1) a federal free > exercise claim, which faced the challenge of getting past the Smith hurdle, > and (2) a state free exercise claim under a Sherbert/Yoder-like exemption > regime, which exists in Texas by virtue of a state RFRA and in Washington > State by virtue of the state Supreme Court's interpretation of the > Washington constitution. > > > > Unlike the plaintiff in Merced, who made both arguments and prevailed on > their Texas RFRA claim, the owners of Stormans did not bring a state-law > exemption claim. > > > > Does anyone on the list know why? > > > > - Jim > > This e-mail message from Alliance Defending Freedom and any accompanying > documents or embedded messages is intended for the named recipients only. > Because Alliance Defending Freedom is a legal entity engaged in the > practice of law, this communication contains information, which may include > metadata, that is confidential, privileged, attorney work product, or > otherwise protected from disclosure under applicable law. If you have > received this message in error, are not a named recipient, or are not the > employee or agent responsible for delivering this message to a named > recipient, be advised that any review, disclosure, use, dissemination, > distribution, or reproduction of this message or its contents is strictly > prohibited. If you have received this message in error, please immediately > notify the sender and permanently delete the message. PRIVILEGED AND > CONFIDENTIAL - ATTORNEY-CLIENT COMMUNICATION/ATTORNEY WORK PRODUCT. > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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