Harris v. McDonnell

• Decision Date: 23 December 2013
• Docket Number: Civil Action No. 5:13cv077.
• Citation: 988 F.Supp.2d 603
• Parties: Joanne HARRIS, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. Robert F. McDONNELL, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

988 F.Supp.2d 603

Joanne HARRIS, et al., on behalf of themselves and all others similarly situated, Plaintiffs,

v.Robert F. McDONNELL, et al., Defendants.

Civil Action No. 5:13cv077.

United States District Court,

W.D. Virginia,

Harrisonburg Division.

Dec. 23, 2013.

Amanda Chloe Goad, James Dixon Esseks, Joshua A. Block, American Civil Liberties Union Foundation, New York, NY, Gregory Roland Nevins, Tara Lynn Borelli, Lambda Legal Defense & Education Fund, Atlanta, GA, Luke Cardillo Platzer, Mark Peter Gaber, Paul March Smith, Jenner & Block LLP, Washington, DC, Rebecca Kim Glenberg, American Civil Liberties Union of Virginia, Richmond, VA, for Plaintiffs.

Earle Duncan Getchell, Jr., Michael Hugh Brady, Norman Allan Thomas, Office of the Attorney General of Virginia, Richmond, VA, Rosalie Pemberton Fessier, Timberlake Smith Thomas & Moses PC, Staunton, VA, for Defendants.

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

Plaintiffs Joanne Harris and Jessica Duff, an unmarried same-sex couple living in the Western District of Virginia, and Christy Berghoff and Victoria Kidd, a same-sex couple married under the laws of the District of Columbia and also living in the Western District of Virginia, brought this action against defendants Robert F. McDonnell, in his official capacity as the Governor of Virginia, Janet M. Rainey, in her official capacity as the State Registrar of Vital Records (collectively “the State Defendants”), and Thomas E. Roberts, in his official capacity as the Staunton Circuit Court Clerk (“Roberts”). Plaintiffs allege that the Commonwealth of Virginia's refusal to permit same-sex marriages within the Commonwealth violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs also challenge Virginia's refusal to recognize same-sex marriages performed under the laws of other states.

The State Defendants assert that the Governor is shielded from suit by the Eleventh Amendment to the United States Constitution and have filed a Motion to Dismiss on Sovereign Immunity Grounds as to him. (Dkt. No. 24).¹ Roberts has filed a Motion to Dismiss the claims against him pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ( Dkt. No. 32). The issues have been extensively briefed, and the court heard argument on October 29, 2013. Having studied the issues, the court will grant the State Defendants' motion to dismiss the Virginia Governor on sovereign immunity grounds and deny Roberts' motion to dismiss.

I.

The Eleventh Amendment provides that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. While the Eleventh Amendment by its terms makes no mention of suits against a state by its own citizens, it is well established that “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (citations omitted). State officers acting in their official capacity are also entitled to Eleventh Amendment protection, because “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (citation omitted).

The Supreme Court recognized an exception to this rule in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which allows suits against state officers for prospective equitable relief from ongoing violations of federal law. “In Ex parte Young, the Supreme Court began with the premise that states are incapable of authorizing unconstitutional conduct, and created the fiction that a state officer engaging in unconstitutional conduct is no longer acting as a state agent—and, thus, is no longer protected by the Eleventh Amendment.” Lytle v. Griffith, 240 F.3d 404, 408–09 (4th Cir.2001). The Ex parte Young exception is directed at “ ‘officers of the state [who] are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings ... to enforce against parties affected [by] an unconstitutional act.’ ” McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir.2010) (quoting Ex parte Young, 209 U.S. at 155–56, 28 S.Ct. 441). The Ex parte Young Court reasoned:

In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.

209 U.S. at 157, 28 S.Ct. 441.

The Fourth Circuit has read Ex parte Young to require “a ‘special relation’ between the state officer sued and the challenged statute to avoid the Eleventh Amendment's bar.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.2001). “General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.” Id. (quoting Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir.1996)). “ ‘[S]pecial relation’ under Ex parte Young has served as a measure of proximity to and responsibility for the challenged state action.” S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 333 (4th Cir.2008) (emphasis in original).

This “special relation” requirement ensures that the appropriate party is before the federal court, so as not to interfere with the lawful discretion of state officials. Ex parte Young, 209 U.S. at 158–59, 28 S.Ct. 441. Primarily, the requirement has been a bar to injunctive actions where the relationship between the state official sought to be enjoined and the enforcement of the state statute is significantly attenuated.

Id. at 332–33. “The special-relation requirement protects a state's Eleventh Amendment immunity while, at the same time, ensuring that, in the event a plaintiff sues a state official in his individual capacity to enjoin unconstitutional action, ‘[any] federal injunction will be effective with respect to the underlying claim.’ ” McBurney, 616 F.3d at 399 (quoting Limehouse, 549 F.3d at 333).

Plaintiffs argue that the Governor bears a special relation to the provisions of the Virginia Constitution and Code challenged in this lawsuit,² warranting application of the Ex parte Young exception. The powers of the Governor are set forth in Article V of the Virginia Constitution and in the Virginia Code. The Governor is the chief executive officer of the Commonwealth. SeeVa. Const. art. V, § 1. He must “take care that the laws be faithfully executed.” Va. Const. art. V, § 7. Further, plaintiffs rely upon the Governor's authority to formulate executive branch policies and his role as chief officer for personnel administration and planning and budget for the Commonwealth. SeeVa.Code § 2.2–103. Plaintiffs also cite the Governor's authority to appoint (and remove) certain officers of the Commonwealth, such as agency heads and members of certain boards, commissions, etc. See id. § 2.2–106 (appointment of agency heads; severance); id. § 2.2–107 (appointment of members of commissions, boards, and other collegial bodies); id. § 2.2–108 (removal of members of certain boards, commissions, etc.).

While plaintiffs acknowledge that “[t]he mere fact that a governor is under a general duty to enforce state laws does not make him a proper defendant in every action attacking the constitutionality of a state statute,” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.2001) (quoting Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.1979)), they argue that their claims “are based not only on this general duty but also on [the Governor's] direct supervisory responsibility for all executive agencies, including the power to remove state officials who refuse to follow the Governor's policy or who fail to comply with constitutional requirements.” Br. in Opp'n. re Mot. to Dismiss on Sovereign Immunity Grounds, Dkt. No. 28, at 7.

Plaintiffs' argument misapprehends the limited nature of the Ex parte Young special relation exception. Indeed, “[i]f the Governor is forced to remain a party to this suit, then the Governor also may be named in lawsuits challenging the validity of any state law.” Lytle v. Griffith, 240 F.3d at 414 (Wilkinson, J., dissenting). “[P]ermitting a party to name the Governor in any suit challenging the validity of state law would allow the rule in Ex parte Young to swallow the protections offered by the Eleventh Amendment.” Id.

In a series of decisions, the Fourth Circuit Court of Appeals has delineated the narrow confines of the Ex parte Young special relation exception. Application of that precedent to this case makes it clear that the exception does not apply here.

In Lytle v. Griffith, 240 F.3d 404 (4th Cir.2001), police dispersed an anti-abortion protest on a pedestrian bridge crossing Interstate 64 in Norfolk, citing a no loitering provision of the Virginia Code. The protestors challenged the statute on First and Fourteenth Amendment grounds, naming the Virginia Governor as a defendant. Much as here, plaintiffs contended that the Governor's general law enforcement responsibility and appointment authority provided him with a sufficient connection to the enforcement of the challenged statute to meet the Ex parte Young exception. Sovereign immunity was raised for the first time on appeal, and the Fourth Circuit remanded to allow the district court to consider the issue. On remand, the district court dismissed the Governor and allowed plaintiffs to substitute...