Doe v. Pittsylvania Cnty., Va.

Decision Date03 February 2012
Docket NumberCivil Action No. 4:11cv00043.
Citation842 F.Supp.2d 906
CourtU.S. District Court — Western District of Virginia
PartiesJane DOE, Plaintiff, v. PITTSYLVANIA COUNTY, VIRGINIA and Board of Supervisors of Pittsylvania County, Virginia, Defendants.


Frank Morris Feibelman, Law Office of Frank Feibelman, Rebecca Kim Glenberg, Thomas Okuda Fitzpatrick, ACLU of Virginia, Richmond, VA, for Plaintiff.

William Martin Stanley, Jr., Stanley & Stanley LLC, Moneta, VA, for Defendants.


MICHAEL F. URBANSKI, District Judge.

This matter is before the court on a motion to dismiss filed by defendants Board of Supervisors of Pittsylvania County and Pittsylvania County, Virginia (Dkt. # 14).1 The Board's arguments in support of its motion advance a view of the law inconsistent with controlling United States Supreme Court and Fourth Circuit Court of Appeals precedent. As such, the Board's motion must be DENIED.


The verified complaint alleges that the Board meets twice a month and regularly opens its meetings with Christian prayer. Verified Compl., Dkt. # 1, at ¶¶ 6, 8. A member of the Board delivers an opening prayer at each Board meeting, which prayer is “explicitly Christian in nature; that is, it invokes the name of Jesus Christ ‘Jesus' or ‘Christ.’ Id. at ¶ 8. The verified complaint alleges that, for example, on August 17, 2010, the opening prayer was as follows:

Gracious heavenly father, we thank you for the opportunity to address you, and thank you O Lord, because you made all of this possible. You are our God, you are our King, you are the reason we are here. God, without you, and Jesus, without you, there would be no life on earth, and we would not be able to sit down and express our Christian values before the good people of Pittsylvania County. Amen.

Id. Plaintiff alleges that the audience is asked to stand while the prayer is delivered and the supervisors and audience bow their heads. Id. at ¶ 9. Plaintiff alleges that, except in the case of illness or infrequent scheduling conflicts, she has attended each Board meeting since October 2008 “because she believes it is important to observe and understand the workings of her local government. She intends to continue attending every meeting.” Id. at ¶ 10. Plaintiff alleges that the Christian prayers convey to her the message that she and other non-Christian citizens are not welcome at Board meetings; “create a perception that the Board is unlikely to treat non-Christians fairly because they do not follow the Board's preferred faith;” and make her feel like an outsider in her own community. Id. at ¶ 11. Plaintiff alleges that “as a citizen and resident of Pittsylvania County [she] is entitled to attend meetings of her Board of Supervisors without being subjected to prayers that advance and prefer one religion, Christianity, to the exclusion of other religions that do not recognize the deity of Jesus, including but not limited to Judaism, Islam and Hinduism.” Id.

The verified complaint alleges that after reading about the Fourth Circuit's decision in Joyner v. Forsyth County, 653 F.3d 341 (4th Cir.2011),2 decided on July 29, 2011, plaintiff contacted the American Civil Liberties Union of Virginia Foundation, Inc., which sent an email to each Board member “explaining that the precedents of the Supreme Court and the Fourth Circuit Court of Appeals prohibit legislative meetings from being opened with sectarian prayers, and asking the Board to cease its practice of such prayers.” Verified Compl., Dkt. # 1, at ¶ 12. The Board subsequently passed a written resolution on September 6, 2011 adopting a prayer policy. Id. at ¶ 14. The resolution provides that [i]n order to solemnize proceedings of the Board of Supervisors it is the policy of the Board of Supervisors to allow for an invocation or prayer to be offered before its meetings for the benefit of the Board of Supervisors.” Id. at Ex. A ¶ 1. Although the written policy provides that the prayer is to be delivered by a designated member of the Board, it is not to be “listed or recognized as an agenda item for the meeting or as part of the public business.” Id. at Ex. A ¶ 2. The written policy provides that the prayer is to be voluntarily delivered on a rotational basis by a member of the Board who “shall deliver the prayer or invocation in his or her capacity as a private citizen, and according to the dictates of his or her own conscience.” Id. at Ex. A ¶ 5. As to the mechanics of the prayer, the written policy provides that [s]hortly before the opening gavel that officially begins the meeting and the agenda/business of the public, the Chairperson of the Board of Supervisors shall introduce the invocational speaker, and invite only those who wish to do so to stand for those observances of and for the Board of Supervisors.” Id. at Ex. A ¶ 10. As to content, paragraph 6 of the written policy provides as follows:

6. No guidelines or limitations shall be issued regarding an invocation's content, except that the Board of Supervisors shall request by the language of this policy that no prayer should proselytize or advance any faith, or disparage the religious faith or non-religious views of others.

Id. at Ex. A ¶ 6. The final paragraph of the written policy states:

11. This policy is not intended, and shall not be implemented or construed in any way, to affiliate the Board of Supervisors with, nor express the Board of Supervisors' preference for, any faith or religious denomination. Rather, this policy is intended to acknowledge and express the Board of Supervisors' respect for the diversity of religious denominationsand faiths represented and practiced among the citizens of Pittsylvania County, Virginia.

Id. at Ex. A ¶ 11.

The verified complaint alleges that on the date the resolution was passed, September 6, 2011, [p]rior to roll call, Supervisor Coy E. Harville delivered a Christian prayer.” Id. at ¶ 14. The verified complaint further alleges that despite the passage of the resolution, “supervisors at the September 6, 2011, Board meeting stated their intention to continue praying in the name of Jesus Christ, and have, indeed, continued that practice.” Id. at ¶ 16.


The Board has moved to dismiss the verified complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This plausibility standard requires a plaintiff to demonstrate more than “a sheer possibility that a defendant has acted unlawfully.” Id. at 1949. When ruling on a motion to dismiss, the court must “accept the well-pled allegations of the complaint as true” and “construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997). While the court must accept as true all well-pleaded factual allegations, the same is not true for legal conclusions. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. The Supreme Court outlined its two-pronged approach as follows:

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 1950. Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.


The verified complaint alleges that the “sectarian prayers at meetings” of the Board violate the Establishment Clause of the First Amendment to the United States Constitution. Verified Compl., Dkt. # 1, at ¶ 17. The Establishment Clause of the First Amendment, made applicable to the states and their political subdivisions through the Fourteenth Amendment, see Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947), commands that the government “shall make no law respecting an establishment of religion.” U.S. Const. amend. I. Specifically, the verified complaint alleges:

18. The Board's policy, practice and custom of opening meetings with sectarian prayers have the purpose of advancing one particular faith to the exclusion of other religions.

19. These prayers have the effect of advancing a particular faith by affiliating the government, i.e., Pittsylvania County, with Christianity.

20. The sectarian prayers convey the impermissible message that Pittsylvania County and the Board of Supervisors endorse and favor Christianity.

Verified Compl., Dkt. # 1, at ¶¶ 18–20.

The Board raises three arguments as to why plaintiff's Establishment Clause suit should be dismissed, none of which has any merit. The Board first argues that plaintiff's verified complaint fails to sufficiently plead that she has standing to bring this action despite binding Fourth Circuit precedent to the contrary. Second, the Board erroneously asserts that the doctrine of legislative immunity applies to a suit brought against the County and its Board of Supervisors, as opposed to a suit against members of the Board in their individual capacities. Likewise, the Board asserts that legislative immunity and a legislative testimonial privilege shield its sectarian prayer practice from a constitutional challenge when, in fact, those doctrines are applicable only to...

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    ...729 (2005) (O' Connor, J., concurring) ("[W]e do not count heads before enforcing the First Amendment."); Doe v. Pittsylvania Cty., Va., 842 F.Supp.2d 906, 927 (W.D. Va. 2012) ("The Bill of Rights exists to protect the rights of individuals from popular tyranny."). In sum, the County's vaci......
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