Lytle v. Griffith, 99-2609

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Citation: 240 F.3d 404
• Docket Number: No. 99-2609,99-2609
• Parties: (4th Cir. 2001) DAVID LYTLE; JEANETTE LYTLE; JOAN MAGUIRE, Plaintiffs-Appellees, v. CHARLES D. GRIFFITH, JR., in his official capacity as Norfolk Commonwealth Attorney; HONORABLE JAMES S. GILMORE, III, in his official capacity as Governor of the Commonwealth of Virginia, Defendants-Appellants, and CHARLES R. BREWER, Individually and in his official capacity as Lieutenant of the Norfolk Police Department, Defendant. . Argued:
• Decision Date: 29 September 2000

Page 404

240 F.3d 404 (4th Cir. 2001) DAVID LYTLE; JEANETTE LYTLE; JOAN MAGUIRE, Plaintiffs-Appellees,
v.
CHARLES D. GRIFFITH, JR., in his official capacity as Norfolk Commonwealth Attorney; HONORABLE JAMES S. GILMORE, III, in his official capacity as Governor of the Commonwealth of Virginia, Defendants-Appellants,
and
CHARLES R. BREWER, Individually and in his official capacity as Lieutenant of the Norfolk Police Department, Defendant. No. 99-2609. UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT. Argued: September 29, 2000.
Decided: February 16, 2001.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk.

Jerome B. Friedman, District Judge. (CA-99-1366-2)

Page 405

COUNSEL: ARGUED: William Henry Hurd, Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellants. Michael Joseph DePrimo, AMERICAN FAMILY ASSOCIATION CENTER FOR LAW AND POLICY, Tupelo, Mississippi, for Appellees. ON BRIEF: Mark L. Earley, Attorney General of Virginia, Judith Williams Jadgmann, Deputy Attorney General, Gregory E. Lucyk, Senior Assistant Attorney General, Kevin O. Barnard, Assistant Attorney General, OFFICE OF THE

Page 406

ATTORNEY GENERAL, Richmond, Virginia, for Appellants. Stephen M. Crampton, Brian Fahling, AMERICAN FAMILY ASSOCIATION CENTER FOR LAW AND POLICY, Tupelo, Mississippi, for Appellees.

Before WILKINSON, Chief Judge, and MICHAEL and KING, Circuit Judges.

Remanded by published opinion. Judge King wrote the majority opinion, in which Judge Michael joined. Chief Judge Wilkinson wrote a dissenting opinion.

OPINION

KING, Circuit Judge:

This appeal relates to whether James S. Gilmore, III, the Governor of the Commonwealth of Virginia (the "Governor"), is protected by the Eleventh Amendment from suit in the underlying action -an issue the Governor failed to raise in the district court prior to this appeal. In the underlying case, the district court granted a preliminary injunction barring enforcement of Virginia Code section 46.2-930, which prohibits loitering on designated bridges. See Order and Opinion of November 2, 1999 ("Order"); Order of June 1, 2000 ("Modifying Order").

The Governor and his fellow defendant, Charles D. Griffith, Jr., the Commonwealth's Attorney for the City of Norfolk ("Griffith"), do not seek to overturn the injunction on its merits. Rather, the Governor asserts that he lacks a sufficient connection to enforcement of the challenged statute and, thus, cannot be made a party to this action pursuant to the exception to sovereign immunity found in Ex parte Young, 209 U.S. 123, 159-60 (1908) (permitting federal actions against appropriate state officers for prospective relief from continuing violations of federal law). Although we possess jurisdiction, we remand in order for the district court to consider the issue in the first instance.

I.

A.

Enacted in 1966 and last amended in 1989, the challenged statute provides, in its entirety:

Pedestrians shall not loiter on any bridge on which the Commonwealth Transportation Commissioner has posted signs prohibiting such action. Any person violating the provisions of this section shall be guilty of a traffic infraction.

Va. Code Ann. S 46.2-930 (Michie's 1998 & Supp. 2000). The maximum penalty for violating the statute is a fine of two hundred dollars. See Va. Code Ann. S 46.2-113 (Michie's 1998). For purposes of arrest, traffic infractions are treated as misdemeanors. See Va. Code Ann. S 46.2-937 (Michie's 1998). Otherwise, traffic infractions are "violations of public order . . . and not deemed to be criminal in nature." Va. Code Ann. S 18.2-8 (Michie's 1996 & Supp. 2000).

The powers of the Governor are set forth in article V of the Constitution of Virginia and in the Virginia Code. The Governor is the chief executive officer of the Commonwealth of Virginia (the "Commonwealth"). See Va. Const. art. V, S 1. He must "take care that the laws be faithfully executed." Va. Const. art. V, S 7. He appoints the Superintendent of State Police, see Va. Code Ann.S 52-2 (Michie's 1998), and he is the commander-in-chief of the Commonwealth's armed forces, see Va. Code Ann. S 44-8 (Michie's 1999). The Governor has the authority to summon law enforcement agencies to suppress riots and preserve the peace when local efforts prove insufficient. See Va. Code Ann. S 18.2-410 (Michie's 1996). He also has the power to request criminal prosecutions by the Attorney General, see Va. Code Ann. S 2.1-124 (Michie's 1995 & Supp. 2000).

B.

The plaintiffs, David Lytle, Jeanette Lytle, and Joan Maguire (collectively, the "Lytles"), filed this action under 42 U.S.C. S 1983 seeking to enjoin enforcement of section 46.2-930 on the ground that the Virginia statute unlawfully abridges First

Page 407

and Fourteenth Amendment rights.¹ The Lytles are anti-abortion protesters who, on July 16, 1999, faced arrest pursuant to section 46.2-930 during a demonstration on the Picadilly Overpass, a pedestrian bridge crossing Interstate 64 in the City of Norfolk (the "City"). The Lytles displayed large placards from the bridge -which bore a no-loitering sign-to passing motorists on the interstate highway below. Some forty-five minutes into the demonstration, police arrived and warned the Lytles and fellow protesters that they would be arrested unless they ceased their activities. The Lytles left the overpass after observing the arrests of two of their confederates. It was later discovered that despite the noloitering sign, the overpass had not been designated by the Commonwealth Transportation Commissioner (the "Commissioner") under the provision of section 46.2-930.

C.

Following their encounter with police, the Lytles received assurances from representatives of the Commonwealth and the City that enforcement of section 46.2-930 would be -at least temporarily -suspended, and charges were dismissed against the two protesters who had been arrested. Unappeased, the Lytles filed their action in the district court and immediately moved for a preliminary injunction. The district court heard arguments on their motion on October 7, 1999, and, the following day, received additional written assurances from the Governor and Griffith regarding the Commonwealth's enforcement of the statute. Being "unpersuaded that the defendants' assurances adequately protect the constitutional rights of the plaintiffs[,]" the court granted the preliminary injunction. See Order, at 6, 24. The injunction prohibits enforcement of section 46.2-930, bars further designation of any bridges under the statute, directs immediate covering or removal of existing no-loitering signs, and orders "whatever steps are necessary and appropriate to notify local law enforcement within the Commonwealth regarding the substance of this Order[.]" Id. at 24.

The Governor and Griffith filed a notice of appeal on December 3, 1999. On appeal, they alleged for the first time that: (1) the injunction violated the principles of sovereign immunity because, by its express language, it enjoined "the Commonwealth" directly;² (2) sovereign immunity protects the Governor from this action;

Page 408

and (3) because the Governor should be dismissed as a party, the scope of the injunction should be limited to the City.³

After filing their notice of appeal on December 3, 1999, the Governor and Griffith finally raised the sovereign immunity issues in the district court, in a December 14, 1999 motion to dismiss the Governor and to modify the Order. They also requested a stay of the preliminary injunction pending appeal. However, according to the district court, these motions were neither scheduled for hearing by counsel nor referred to the court for a decision on the briefs. Then, on March 30, 2000, the Governor and Griffith filed a second motion to dismiss, again raising many of these same issues in the district court. This motion, unlike the earlier motions, was scheduled for hearing. The court, "[i]n the interest of efficiency, judicial economy, and to clear any confusion in the record of this case," chose to discuss each of the pending motions. See Modifying Order, at 2. However, after reviewing relevant authorities regarding the Governor's sovereign immunity defense, the court deferred ruling on the motion to dismiss pending disposition of this appeal. See id. at 2-9, 12. The court also clarified the language of its earlier Order, see id. at 12; supra note 2, and denied the motion for a stay of the injunction pending appeal, see Modifying Order, at 12.

II.

We possess jurisdiction, pursuant to 28 U.S.C. S 1292(a)(1), to hear appeals from orders granting injunctions. Moreover, although the ground for appeal in this case -sovereign immunity -was not raised in the district court, we nonetheless possess jurisdiction to determine the matter. See Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 227 (4th Cir. 1997) (recognizing that a court may consider the issue of Eleventh Amendment immunity, because of its jurisdictional nature, at any time).

III.

A.

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. Although the Eleventh Amendment, by its terms, applies only to suits brought against a state by "Citizens of another State," 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 (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 Dep't of...