Hogge v. Hedrick

• Decision Date: 14 January 1975
• Docket Number: Civ. A. No. 74-0488-R.
• Parties: James Robert HOGGE et al. v. Wilmer J. HEDRICK et al.
• Court: U.S. District Court — Eastern District of Virginia

391 F. Supp. 91

James Robert HOGGE et al. v. Wilmer J. HEDRICK et al.

Civ. A. No. 74-0488-R.

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

November 29, 1974.

On Motion to Partially Vacate January 14, 1975.

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Michael Morchower, Ott, Morchower, Thompson & McMullan, Richmond, Va., for plaintiffs.

William G. Broaddus, County Atty., Timothy Oakman, Asst. County Atty., County of Henrico, Richmond, Va., for defendants.

R. Michael Smith, Norfolk, Va., for intervening plaintiff.

MEMORANDUM

MERHIGE, District Judge.

This action, under 42 U.S.C. § 1983 and the First, Fourth, Ninth and Fourteenth Amendments to the Constitution, challenging the validity of Chapter 17, Articles I-IX, of the Code of the County of Henrico, Virginia, which regulates the operation of and the conduct of employees at massage parlors located within the county, is before the Court on plaintiffs' motion for a preliminary injunction. Plaintiffs, whose places of business are located within the County of Henrico, are James R. Hogge and Jackie C. Easterling, part-owners of Hide-A-Way Health Club; Elmo E. Selph, President of E.S.V., Inc., a Virginia corporation which operates Atlantis Massage; Elisha Porter, III, President of Tri-City Today, Inc., a Virginia corporation which operates Professional Massage and Health Studios; Delores T. Curlee, owner of Antler Massage and Antler Annex; and Debra M. Radabaugh, a former masseuse at Hide-A-Way Health Club. The defendants, officials of the County of Henrico, are: Edward A. Beck, County Manager; and Gordon W. Jinkins, Jr., Eugene T. Rilee, Jr., Anthony P. Mehfoud, Charles M. Johnson and Linwood E. Toombs, Members of the Board of Supervisors, the governing body of the county.¹ Jurisdiction of the suit is attained pursuant to 28 U.S.C. §§ 1343(3), 2201 and 2202.

Plaintiffs seek a declaration that the ordinance in question is violative of the Constitution and laws of the United States and seek an injunction against the future enforcement of the ordinance against plaintiffs. They assert that the County of Henrico ordinance is violative of the Due Process Clause of the Constitution in that: (1) it is vague and overly broad; (2) it denies plaintiffs the opportunity to protect themselves by prohibiting the locking of main entrance and passageway doors; (3) it grants the Chief of Police unlimited discretion as to the licensing of massage establishments; (4) it requires the maintenance of records of patrons beyond that required of other commercial establishments; and (5) it is pre-empted by and inconsistent with a general state statutory scheme dealing with offenses against morality and decency. Plaintiffs also contend that the ordinance violates the Equal Protection Clause by virtue of its alleged interference with plaintiffs' fundamental right to engage in a lawful occupation absent evidence of a compelling state interest or a rational basis and its underinclusive nature in declaring certain conduct unlawful only when performed within a massage establishment. They also assert that the ordinance violates the Fourth Amendment, by granting officials of the county building, health and police departments the authority to inspect private commercial areas. Plaintiff Radabaugh alone contends that the ordinance violates her right of privacy and, therefore, the Fourteenth Amendment, by imposing criminal sanctions on heterosexual relations between consenting adults when performed within the privacy and seclusion of a massage establishment.

The matter first came on for hearing on November 12, 1974, when the Court granted a temporary restraining order against the defendants. On November 22, 1974, the Court entered its order for an additional seven-day period.

At the threshold of the Court's inquiry into this matter is the defendants' allegation that the Court lacks jurisdiction over this suit. Defendants challenge plaintiffs' standing to attack the ordinance in question and suggest there exists no actual case or controversy over which the Court can exercise its judicial power pursuant to Article III of the Constitution. The test which the Court must apply under these circumstances is whether the party who invokes the power of the Court to annul legislation on grounds of unconstitutionality is "able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement . . .." Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923), cited in Poe v. Ullman, 367 U.S. 497, 505, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). The facts before the Court show that the Chief of Police mailed to certain of the plaintiffs' respective places of business a letter containing a copy of the ordinance and application form for licensing, and additionally specified the effective date of the ordinance, six days hence. The Court finds this fact, together with the County Attorney's statement at hearing that plaintiffs will be prosecuted for their failure to comply with the provisions of the challenged ordinance, renders this cause, in a real sense, adversary in nature and therefore appropriate for adjudication.²

Defendants further contend that if this is a suit brought against them in their official capacities, the Court is barred by City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), from granting plaintiffs the equitable relief they seek. Alternatively, defendants allege that if this suit is construed as one against them in their individual capacities, they may raise the bar of official immunity.

Defendants' contention, often encountered since the Supreme Court's decision in City of Kenosha v. Bruno, that municipal officials are not amenable to suit in their official capacities for purposes of providing civil rights plaintiffs with equitable relief because not "persons" within the language of 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), lacks merit. It has been settled since Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) that 42 U. S.C. § 1983 confers jurisdiction upon the federal district courts to hear civil rights action for both monetary and equitable relief against municipal officials in their official capacities.³ This holding was reiterated only last year by this Circuit's decision in Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973). A court order granting the plaintiffs the kind of injunctive relief they seek—a prohibition against enforcement of Henrico's massage parlor ordinance—can only operate against the defendants in their official capacities because the defendants lack the authority to operate the apparatus of government in their individual and private capacities. See, The Supreme Court, 1972 Term, 87 Harv.L.Rev. 57, 259 & n. 36 (1973).

Defendants' attempt to hang the plaintiffs on the horns of a dilemma with their alternative argument: That if this action is construed as one against them in their individual capacities, they are protected by the doctrine of official immunity. Defendants' efforts to impale plaintiffs with this horn must fail. The doctrine of common law immunity grants limited protection from suits for monetary damages to public officials who perform discretionary duties in good faith. The rationale underlying the immunity doctrine was the fear that suits for money damages would chill vigorous and robust decisionmaking by public officials. Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). This immunity from suit for monetary damages accorded public officials who act in good faith has been incorporated into § 1983 doctrine. Hill v. Rowland, 474 F.2d 1374, 1377 (4th Cir. 1973). The chilling effect on decision making occasioned by suits for monetary damages, however, is not present when equitable relief is sought so that "the doctrine of immunity . . . has no application to a suit for declaratory or injunctive relief." Rowley v. McMillan, 502 F.2d 1326, 1331 (4th Cir. 1974).

Finally, defendants argue that federal injunctive relief is unavailable to plaintiffs since they have not alleged facts sufficient to support a finding that "the danger of irreparable loss is both great and immediate." Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926). The Court is of the opinion that at this juncture of the controversy, this allegation goes to the merits of plaintiffs' cause of action. As such it must be considered by the Court in conjunction with the other pertinent factors bearing upon the propriety of the Court's issuing an injunction pendente lite. Defendants' contention in this regard, however, in no way alters the Court's finding as to the justiciability of the matter before it.

Turning to the merits of plaintiffs' motion, it is clear that the Court must consider four factors in deciding whether to grant a preliminary injunction: they are, the threat of irreparable injury to plaintiffs should preliminary injunctive relief be denied; injury to other parties should the injunction issue; the probability that the plaintiffs will succeed on the merits; and the interests of the public. Conservation Council of North Carolina v. Costanzo, 505 F.2d 498 at 502 (4th Cir. 1974); Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970). Moreover, the Court notes that the purpose of the relief sought is "to preserve the status quo until the rights of the parties can be fairly and fully investigated and determined by strictly legal proofs and according to the principles of equity." Sinclair Refining Co. v. Midland Oil Co., 55 F.2d 42, 45 (4th Cir. 1932).

The evidence shows that plaintiffs ceased operations on November 11, 1974 immediately prior to the effective date of the challenged ordinance, which was November 12, 1974. It was on that date that the Court entered the presently effective temporary restraining order, after which, presumably, plaintiffs...