Croatan Books, Inc. v. Com. of Va.

• Decision Date: 04 November 1983
• Docket Number: Civ. A. No. 83-0379-R.
• Citation: 574 F. Supp. 880
• Parties: CROATAN BOOKS, INC. t/a Showplace Books v. COMMONWEALTH OF VIRGINIA, et al.
• Court: U.S. District Court — Eastern District of Virginia

574 F. Supp. 880

CROATAN BOOKS, INC. t/a Showplace Books v. COMMONWEALTH OF VIRGINIA, et al.

Civ. A. No. 83-0379-R.

United States District Court, E.D. Virginia, Richmond Division.

November 4, 1983.

Clarence B. Neblett, Jr., Richmond, Va., Burton W. Sandler, Towson, Md., for plaintiff.

Alan Katz, Richard B. Smith, Asst. Attys. Gen., Joel Peck, Lewis S. Minter, Richard Bennett, Browder, Russell, Morris & Butcher, Richmond, Va., for defendants.

OPINION

WARRINER, District Judge.

Presently before the Court are defendants Commonwealth of Virginia, the State Corporation Commission, and Attorney General of Virginia Gerald L. Baliles' motion to dismiss each as a party defendant. Plaintiff has not responded within the time permitted by Local Rule 11(F).

Claiming violations of rights protected under 42 U.S.C. § 1983 and 42 U.S.C. § 1985, plaintiff, a corporation chartered by the Virginia State Corporation Commission, seeks preliminary and permanent injunctive relief, compensatory damages of $300,000 and punitive damages of $300,000. It requests as well a declaratory judgment, under 28 U.S.C. §§ 2201 and 2202, that the threatened application of § 13.1-93 of the Code of Virginia will deprive plaintiff of rights protected under the First, Fifth, and Fourteenth Amendments. In addition, plaintiff asks for attorney's fees under 42 U.S.C. § 1988.

Plaintiff was incorporated under the laws of the Commonwealth of Virginia on 9 September 1975 for the stated purpose of engaging in retail and chain distribution of novelties, magazines, books, and newspapers. Between 1978 and 1982, plaintiff was convicted scores of times for feloniously distributing obscene materials; on several similar charges plaintiff was acquitted, with eight such acquittals having occurred in 1982.¹ In January of 1983, the grand jury returned yet another felony indictment against plaintiff, again for distributing obscene material. On 19 January 1983, Attorney General of Virginia Baliles sought from the State Corporation Commission an order that plaintiff show cause why its corporate charter should not be dissolved under authority of Va.Code § 13.1-93 on the grounds that it had "continued to exceed or abuse the authority conferred upon it by the law." The State Corporation Commission issued a show-cause order on 24 March 1983, a hearing was set for 19 May 1983, but on plaintiff's motions before the State Corporation Commission it has been at least three times continued. According to the record before this Court it has still not been heard by the State Corporation Commission. A request for a temporary restraining order as to one of the continued hearings was denied by this Court.

Plaintiff filed his complaint on 24 June 1983, alleging that defendants conspired to close down plaintiff's business, the selling of books and materials centered on sexual activities, by unlawfully applying Code of Virginia § 13.1-93 (1950) to revoke plaintiff's corporate charter due to alleged misuse or abuse of it. Plaintiff claims that the results of the alleged conspiracy are violation of rights presumptively protected under the First Amendment, and the perpetuation of a chilling effect upon the exercise of its First Amendment rights. Plaintiff claims that it has suffered damages, resulting from the substantial interference with its ability to conduct an ongoing business and that it will continue to lose income. It contends that it has been deprived of equal protection of the laws secured by the Fifth and Fourteenth Amendments to the Constitution, basing this claim on the fact that the State Corporation Commission has never before revoked the charter of an existing corporation because of its past convictions under a criminal statute.

Defendants have responded with separate motions to dismiss. In passing on the motions the Court will consider not only the allegations of the complaint but also the evidence and admissions made at the hearing on plaintiff's motion for a TRO. In ruling on a motion to dismiss, a federal court, if it refers to matters outside the complaint, will treat the motion as one for summary judgment. Here, however, the situation is different; it is plaintiff whose evidence is being considered, not that of defendant-movant. Plaintiff thus has the benefit of the most expansive reading possible given to his complaint, while defendants, whose motions will be granted, have no occasion for dismay. These motions will be granted for the reasons presented below:

I

On 15 July 1983, defendant Commonwealth of Virginia moved to dismiss plaintiff's complaint against her, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim on which relief can be granted. The Commonwealth bases its motion on a claim of sovereign immunity under the Eleventh Amendment to the Constitution, which immunity deprives this Court of jurisdiction to entertain suit against it either for damages, declarative, or injunctive relief.

Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3058, 57 L.Ed.2d 1114 (1978), stands squarely for the proposition that a suit may generally not be maintained against a State which has not waived its sovereign immunity. Dealing specifically with the Commonwealth of Virginia, in Jacobs v. College of William & Mary, 495 F.Supp. 183, 190 (E.D.Va.1980), the district court considered Section 8.01-192 of the Virginia Code, which allows certain claims against the Commonwealth to be brought in its circuit courts and rejected the argument that this narrow waiver operates as a blanket consent to be sued in federal courts:

A state's waiver of immunity in its own courts, however, does not necessarily operate as a consent to be sued in federal court as well.... A waiver of the state's Eleventh Amendment immunity effective as to actions brought in federal court must result from a clear legislative intent to accomplish that end.

And, in Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909), the Supreme Court held that in deciding whether a State has waived its constitutional protection under the Eleventh Amendment, waiver will be found only where stated "by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction."

Because there has been no such clear manifestation, indeed, because there has been no manifestation at all, of intent to waive Eleventh Amendment immunity on the part of the Commonwealth of Virginia, her immunity prevents her being haled into federal court to answer claims such as the one before me.

The plaintiff argues, however, that Eleventh Amendment immunity notwithstanding, the Commonwealth of Virginia must be amenable to suits under 42 U.S.C. § 1983 since § 1983 was adopted under authority of the Fourteenth Amendment, which, where necessary, abrogates the Eleventh Amendment. A series of Supreme Court holdings, however, stand against plaintiff's position. In the earliest of these, Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974), the Supreme Court held that a federal court's remedial power "consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief ... and may not require a retroactive award which requires the payment of funds from the State treasury." Edelman, then held that damages payable by the sovereign could not be compelled under § 1983.

Four years later in Monell v. New York City Department of Social Services, 436 U.S. 658, 664, 671, 98 S.Ct. 2018, 2022, 2026, 56 L.Ed.2d 611 (1978), the Supreme Court found that a municipality was not clothed with Eleventh Amendment immunity when it faced a plaintiff in a § 1983 action. Although it was speculated that the Monell holding eviscerated Edelman, in Alabama v. Pugh, supra, 438 U.S. at 782, 98 S.Ct. at 3057 the Supreme Court once again affirmed that a sovereign State could not be joined as a defendant from which injunctive relief was sought without violating the Eleventh Amendment, even though the complaint was based on 42 U.S.C. § 1983 and the claim was a violation of the Eighth and Fourteenth Amendments. Finally in Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979), the Supreme Court explicitly reaffirmed its distinction "that relief permissible under the doctrine of Ex parte Young and that found barred in Edelman was the difference between prospective relief on one hand and retrospective relief on the other"; while a federal court, consistent with the Eleventh Amendment, may enjoin State officials to conform their conduct to the requirements of federal law, even though such an injunction may have an ancillary effect on the State treasury, "it may not impose a retroactive award of money payable by the State itself."

Applying this law to the facts of the instant case we necessarily reach two conclusions. First, the Commonwealth of Virginia, never having waived her Eleventh Amendment immunity, is not amenable to a suit for damages in federal court, even when the basis for such suit is a claimed violation of 42 U.S.C. § 1983. Second, only officials of the Commonwealth may be enjoined from acts that violate the Constitution.

As the Fifth Circuit stated in Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069 (5th Cir.1981):

In Alabama v. Pugh, 438 U.S. 781 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam), the Supreme Court held that, absent an express waiver by the state of its eleventh amendment immunity, Edelman v. Jordan, 415 U.S. 651 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Employees v. Department of Public Health and Welfare, 411 U.S. 279 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Parden v. Terminal Ry., 377 U.S. 184 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), neither the state nor its agencies may be sued for injunctive relief in federal court, although injunctive or prospective relief may be sought against state officials without invoking the eleventh amendment bar. See Edelman v. Jordan, 415

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