DeBauche v. Virginia Commonwealth University

• Citation: 7 F.Supp.2d 718
• Decision Date: 13 April 1998
• Docket Number: No. Civ.A. 3:97CV770.,Civ.A. 3:97CV770.
• Parties: Sue Harris DEBAUCHE, Plaintiff, v. VIRGINIA COMMONWEALTH UNIVERSITY, et. al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

Page 718

7 F.Supp.2d 718

Sue Harris DEBAUCHE, Plaintiff, v. VIRGINIA COMMONWEALTH UNIVERSITY, et. al., Defendants.

No. Civ.A. 3:97CV770.

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

April 13, 1998.

James Jeffrey Knicely, Knicely & Cotorceanu, Williamsburg, VA, Thomas Stephen Neuberger, Wilmington, DE, John W. Whitehead, Charlottesville, VA, Jamin Raskin, Professor, Washington, DC, for Sue Harris DeBauche, plaintiff.

Alison Paige Landry, Office of Atty. Gen., Ronald C. Forehand, Senior Assistant Attorney General, William Henry Hurd, Office of Atty. Gen., Richmond, VA, for Virginia Commonwealth University, Eugene P. Trani, defendants.

Roger Lee Gregory, Lawrence Douglas Wilder, Jr., Kimberly Friend Smith, Wilder & Gregory, Richmond, VA, for L. Douglas Wilder, defendant.

Robert Lawrence Brooke, Andrew Gray Mauck, Mays & Valentine, Richmond, VA, for Clear Channel Radio, Inc., defendant.

Robert Hewitt Pate, III, John Samuel Martin, Hunton & Williams, Richmond, VA, for Central Virginia Educational Telecommunications, Inc., defendant.

MEMORANDUM OPINION

SPENCER, District Judge.

THIS MATTER is before the Court on four motions by the defendants. The first is a motion to dismiss the Amended Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure by the defendants Virginia Commonwealth University ("VCU") and VCU President Eugene Trani, in both his individual and official capacities (collectively, "University Defendants"). The second is a motion to dismiss the Amended Complaint under Rule 12(b)(6) by the owner of television station WNVT, Central Virginia Educational Telecommunications, Inc. ("CVETC"). The third is a motion to dismiss, or in the alternative motion for summary judgment, by Clear Channel Radio, Inc. ("Clear Channel Radio"), the owner of radio station WRVA. Finally, the fourth is a motion by Lawrence Douglas Wilder ("Wilder") to dismiss under Rule 12(b)(6) or for summary judgment under Rule 56. For the reasons expressed below, the Court GRANTS the University Defendants' motion to dismiss under Rules 12(b)(1) and 12(b)(6) as well as CVETC, Clear Channel Radio and Wilder's motions to dismiss under Rule 12(b)(6).

I. Background

The plaintiff Sue Harris DeBauche ("DeBauche") is the State Chairman of the Virginia Reform Party. She was a state-qualified and balloted Virginia Reform Party candidate for Governor of Virginia in the 1997 election. This case concerns DeBauche's exclusion from a gubernatorial debate entitled "Debate Virginia."

In April 1997, former Governor Wilder, who was a radio personality at WRVA, proposed and planned a debate between James S. Gilmore III ("Gilmore") and Donald S. Beyer ("Beyer"), who at the time were the only duly-qualified candidates for Governor. Some time after, VCU and President Trani offered the premises of VCU as a forum in which to hold the debate and offered to contribute VCU personnel, staff and other resources to promote, manage and execute the debate. On or about September 10, 1997, Wilder accepted VCU's offer to hold Debate Virginia. This debate was then promoted to the public by VCU and radio station WRVA. Between September 15, 1997¹ and October 1, 1997, DeBauche made requests to participate in Debate Virginia but she never received a response from Wilder or VCU.

Nonetheless, Debate Virginia was held on October 6, 1997 with only Gilmore and Beyer as participants. It was held before an audience of hundreds of invited guests and was broadcast to most areas of Virginia, including live broadcasts by the defendants WRVA and WNVT, among others. Soon after, on or about October 21, 1997, DeBauche made a written demand to VCU and Trani that they schedule a gubernatorial debate including Gilmore, Beyer and herself prior to the November 4, 1997 election to remedy the supposed damage done to DeBauche and her Party. VCU and Trani rejected this demand three days later.

In the November 4 election, Gilmore won. DeBauche failed to garner ten percent of the vote, the amount needed for the Reform Party to have automatic ballot access in the next race. As a result, she has brought this suit against the University Defendants, Wilder, CVETC and Clear Channel Radio.

The Amended Complaint has four counts.² Count one alleges that the defendants violated DeBauche, the Reform Party and its members' constitutional rights to free speech and freedom of association as guaranteed by the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983. Count two claims that the defendants' actions violated their rights to equal protection under the Fourteenth Amendment and 42 U.S.C. § 1983 "by unlawfully discriminating on the basis of the content or viewpoint of her speech." Count three alleges that the defendant violated their rights to equal protection under the Fourteenth Amendment and 42 U.S.C. § 1983 by "unlawfully classifying the duly-qualified and-balloted candidates for Governor of Virginia without a reasonable or compelling state interest and in a manner that failed to satisfy constitutional requirements." Finally, Count four claims their rights under the Ninth and Fourteenth Amendments and 42 U.S.C. § 1983 were violated by the defendants. The University Defendants, Clear Channel Radio, CVETC and Wilder have moved for dismissal of the Amended Complaint.

II. Discussion

A. Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move for dismissal of a claim on the grounds of failure to state a claim upon which relief can be granted. When considering such a motion, the Court must presume that all factual allegations in the complaint are true. Martin Marietta v. International Telecommunications Satellite Org., 991 F.2d 94, 97 (4th Cir.1992). All reasonable inferences must be construed in the light most favorable to the non-moving party. Id. The Court Should not dismiss any claim unless it appears beyond a doubt that the plaintiff could not recover under any set of facts which could be proven. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Labram v. Havel, 43 F.3d 918, 920 (4th Cir.1995).

The standard of review for a 12(b)(1) motion, in turn, is a function of the motion's purpose. Where the motion constitutes a facial attack upon the complaint's allegations of subject matter jurisdiction, the Court must presume that all factual allegations in the complaint are true, Com. of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, 632 F.2d 365 (4th Cir.1980), aff'd, 458 U.S. 592, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982), and make all reasonable inferences in the plaintiff's favor. Johnson v. Mueller, 415 F.2d 354 (4th Cir.1969); MacKethan v. Peat, Marwick, Mitchell & Co., 439 F.Supp. 1090 (E.D.Va.1977). In this case, however, the motion challenges the actual existence of the Court's subject matter jurisdiction. In such a situation, the Court may "look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (citations omitted). See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). It is the plaintiff's burden to prove that jurisdiction in this Court is proper. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Fleming v. Workers' Comp. Comm'n, 878 F.Supp. 852, 857 (E.D.Va.1995), aff'd, 78 F.3d 578, 1996 WL 93843 (4th Cir.1996). While the Court will read the plaintiff's complaint as a whole and will construe it broadly and liberally, it is not bound to draw argumentative inferences in the plaintiff's favor. Flue-Cured Tobacco Coop. v. United States EPA, 857 F.Supp. 1137, 1140 (M.D.N.C.1994).

B. Analysis

The Court must first note that, although the election has occurred, the claims in DeBauche's Amended Complaint are not moot. It is more than conceivable that DeBauche as a Reform Party candidate for a political office will be excluded from a debate including only Democratic and Republican candidates and involving a state university. Even though DeBauche may attempt a preliminary injunction to stop such a debate, a court's final resolution of the matter may not occur before the election, particularly if the debate were to occur in the few weeks before the election. The effects on minority-party candidates like DeBauche from the circumstances presented in this case will persist in future elections but "within a time frame too short to allow resolution through litigation." See Johnson v. F.C.C., 829 F.2d 157, 159, n. 7 (D.C.Cir.1987).

However, DeBauche lacks standing to assert claims on behalf of the Reform Party. The alleged harm committed by the defendants was to exclude DeBauche from Debate Virginia. DeBauche does not allege, and cannot seriously allege, that the defendants have control over the gubernatorial election, its results, or automatic ballot access so that the Reform Party's loss of automatic ballot access can be attributed to the defendants. Therefore, the alleged injury to the Reform Party is tenuously related to the alleged harm to DeBauche. Moreover, there is no indication that the Reform Party has designated DeBauche to bring this suit on its behalf for any injury. See Marshall v. Meadows, 921 F.Supp. 1490, 1493 (E.D.Va. 1996) (explaining party member cannot have standing when representing the party's interests if the party itself has not sought suit).

With that said, the Court will address the parties' arguments in two groups: the University Defendants and then the remaining defendants, who are all private parties.

1. The University Defendants

i. Eleventh Amendment

The Eleventh Amendment generally precludes lawsuits against the states, state agencies, or individual state officers in their official capacity. Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). According to the University Defend...