Democratic AG tries to ban pro-lifers, gun makers from federal court, 'emergency' appeal says

If the Democratic attorney general of The Garden State wants to shut down your business or scare away your donors, the federal courts cannot help you.

That's the warning issued by a network of pro-life pregnancy centers fighting an allegedly harassing subpoena from New Jersey AG Matthew Platkin, who seeks a wide range of documents going back 10 years, after a federal court ruled Jan. 12 it didn't have jurisdiction to hear their constitutional challenge.

First Choice Women's Resource Centers filed an emergency motion for an injunction pending appeal Tuesday to the 3rd U.S. Circuit Court of Appeals, accusing U.S. District Judge Michael Shipp of knowingly creating "a Catch-22 scenario that would likely bar any federal challenges to state administrative subpoenas."

They said Shipp's dismissal ignores the 3rd Circuit's ruling two years ago, in a similar subpoena challenge by Smith & Wesson, that reinstated the gun manufacturer's lawsuit against Platkin because federal courts should give up jurisdiction only when "orders uniquely in furtherance of the state courts’ judicial function" are involved.

The dispute resembles challenges to the constitutionality of federal agencies' in-house judges before those administrative proceedings have ended.

The Securities & Exchange Commission put certified public accountant Michelle Cochran through seven years of its own proceedings before the Supreme Court ruled unanimously last year she didn't have to wait for a federal court to hear her challenge. The agency subsequently promised to end its case and not bring another against Cochran to dismiss her lawsuit.

Platkin's October 2020 subpoena under the New Jersey Consumer Fraud Act sought documents related to Smith & Wesson's in-state advertisements concerning "home safety, concealed carry, personal protection, personal defense, personal safety, or home defense benefits" of owning a gun.

Because the gun manufacturer "eventually" complied with the state court order to turn over documents, it faces only a "possibility of contempt," which is "insufficient to warrant [federal] abstention," the three-judge 3rd Circuit panel said in March 2022.

The case presents "novel questions at the crossroads between the guarantees in the First and Second Amendments," with Platkin "waving aside concerns" about the rights of his constituents "in, as always, the name of 'safety,'" Judge Paul Matey, appointed by President Trump, wrote in a concurring opinion.

"Future firearms instructors, fearing the arrival of subpoenas, might decide it is not worth advertising their services for 'safety' training" and outdoor magazines may hesitate "before speaking about the content of a product," he wrote. Platkin "selectively quoted" one Smith & Wesson ad to misrepresent what it claimed, a "less-than-forthcoming approach to litigation" that could warrant "careful review of New Jersey’s entire investigation," Matey said. 

Platkin prevailed with the new federal judge assigned to hear the reinstated case, President Biden appointee Evelyn Padin, in late 2022. The case went back to the 3rd Circuit, with the last action Nov. 15: oral argument before a panel that again included Judge Matey.

While both are targeted by Democratic state officials, pro-life pregnancy centers have less flexibility than gun makers to move to friendlier states without abandoning their missions. Smith & Wesson relocated to gun-friendly Tennessee last year after fleeing its increasingly gun-hostile home of 167 years, Massachusetts.

After First Choice sought a temporary restraining order against Platkin's subpoena for documents including "every" ad and solicitation for "abortion pill reversal," Judge Shipp skipped oral argument and decided "sua sponte" – without a motion by Platkin – that he didn't have jurisdiction over the pregnancy center network's lawsuit at all.

It's not "ripe" for his consideration because Platkin's subpoenas are not "self-executing" but require a state to issue a contempt judgment against the target for noncompliance, meaning "no actual or imminent injury has occurred," the ruling said. 

Shipp cited a 5th Circuit ruling in a "factually identical" Google case against a subpoena by Mississippi, whose courts like New Jersey's have power to "quash or modify" subpoenas, rather than precedent from his own binding circuit, the 3rd.

He agreed with First Choice there were "factual similarities" with the 3rd Circuit's Smith & Wesson ruling and acknowledged its "concerns with the procedural tangle" of simultaneous state and federal proceedings. 

But Shipp distinguished the two cases because he's not abstaining from jurisdiction, just deeming the case not ripe, and said he won't get ahead of the 3rd Circuit's pending ruling in the Smith & Wesson appeal.

In a long footnote, Shipp admitted that New Jersey subpoenas "may seldom if ever be ripe for adjudication in federal court" because of their structure under state law, due to preclusion principles that prevent a party from relitigating a final judgment.

First Choice's emergency motion argues that Shipp ignored Platkin's own stated plan to "immediately" enforce the subpoena, meaning the pregnancy center network faces "imminent, concrete Article III injuries" subject to federal jurisdiction.

It faces an ongoing chilling effect regardless of a "future potential enforcement order" and discrimination based on its religious beliefs about abortion, and the subpoena "threatens its protected associations" by seeking 10 years of sensitive private information about its donors, employees and volunteers.

"Parties have standing to challenge judicial subpoenas because they are court orders enforceable by the contempt power," regardless of Platkin's "non-binding commitment to forgo those sanctions" in state court, the motion says. "No other action is needed to make them ripe for redress."

The network cited its own out-of-circuit authority. The 9th Circuit explicitly rejected the 5th Circuit's Google reasoning in Twitter's challenge to Texas AG Ken Paxton's civil investigative demand following its then-permanent ban on former President Trump, finding that "Google could have suffered injury in the form of objectively reasonable chilling of its speech" from the Mississippi CID "even prior" to its enforcement.

Ripeness is often irrelevant in federal case law anyway, First Choice said.

"The Supreme Court has held that if state law imposes a threat of administrative proceedings followed by more severe, criminal sanctions," it's enough for injury triggering federal jurisdiction. 

"The result should be no different where, as here, the state administrative proceeding is a subpoena backed by the threat of existential sanctions," the motion says, noting that New Jersey law "makes disobedience of the subpoena itself punishable," unlike Mississippi's.

The 3rd Circuit must stop the preclusion argument that makes federal challenges "dead on arrival," which Platkin is also arguing in the Smith & Wesson appeal, the network says. "And plainly, an order that would place state executive action beyond the reach of the federal courts cannot stand."