People for the Ethical Treatment of Animals, Inc. v. Kan. State Fair Bd.

Citation891 F.Supp.2d 1212
Decision Date04 September 2012
Docket NumberNo. 12–2559–JTM.,12–2559–JTM.
PartiesPEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. KANSAS STATE FAIR BOARD, State of Kansas, and Denny Stoecklein, in his Representative Capacity as General Manager of the Kansas State Fair Board, Defendants.
CourtU.S. District Court — District of Kansas


Stephen D. Bonney, ACLU of Kansas and Western Missouri, William Edward Raney, Copilevitz & Canter, PC, Kansas City, MO, for Plaintiff.


J. THOMAS MARTEN, District Judge.

This matter is before the court on the Motion for Injunctive Relief filed by the plaintiff People for the Ethical Treatment of Animals (PETA). PETA seeks an injunction permitting it to exhibit at the Kansas State Fair a video containing graphic images of animal slaughter, free from shielding or screening. The defendants have moved to dismiss the action. As stated at the hearing conducted by the court on September 4, 2012, and for the reasons stated herein, both motions are hereby denied.

A. Facts

On April 6, 2012, PETA applied for a booth at the State Fair, which operates from September 7 to September 16, 2012 in Hutchinson, Kansas. PETA applied with the intention of exhibiting its film, Glass Walls. Narrated by Paul McCartney and accompanied by video putatively captured in food processing plants and slaughterhouses, Glass Walls condemns as inhumane the treatment there received by chickens, cows, pigs and fish. The images depicted in the film are sometimes graphic.

On August 10, 2012, the Kansas State Fair Board (KSFB) approved PETA's request, with some qualifications. The board wrote:

• Adhesive stickers are not allowed individually or as part of any type of promotional materials.

• Sound must be kept at a reasonable volume, so as not to disturb Exhibitors in the same area from conducting business. This includes any generators, music or video.

• You have listed screening of a video titled “Glass Walls”. Any videos, including “Glass Walls” or pictures of any kind that depict animalslaughter, animal harvest, hide removal, or show or depict live animals being decapitated, dismembered or butchered must be shielded so that the video or pictures may not be readily visible to passersby or the general public on any side of the booth and so each individual viewer makes a conscious choice to view the video or pictures.1

On August 14, an attorney for PETA wrote to Sue Stoecklein, Commercial Exhibits Director for the Fair, objecting to the proposed shielding as unconstitutional. PETA's counsel again wrote on August 17, threatening litigation if the shielding requirement was not removed. PETA commenced this action on August 27.

In conjunction with its Motion to Dismiss, the defendants have submitted evidence showing that the mission of the State Fair is [t]o promote and showcase Kansas agriculture, industry and culture, to create opportunity for commercial activity, and to provide an educational and entertaining experience that is the pride of all Kansans.”

The KSFB issues a Manual governing Exhibitor Conduct at the Fair, which provides, among other things, that

The Exhibitor's responsibility can be summed up very simply: “Be a good neighbor.” All Exhibitors are equal regardless of booth size and should be given an equal opportunity, to present their product to the public.... Our primary audience consists of family and youth. The Kansas State Fair reserves the right to reject any exhibit and/or contents that may be considered objectionable by that audience.

The State Fair advertises itself as “Kansas' Largest Classroom,” and “a one-of-a-kind educational event that no student should miss.” The defendants also market the Fair to the Kansas 4–H and to Kansas teachers to bring their members and students, most of elementary school age, to the Fair for an educational experience. In 2011, 5,603 students attended the Fair in association with a variety of programs and organizations. Many children unaffiliated with any particular organization also attend the Fair

The defendants also cite numerous instances in which they have barred or regulated exhibitors from displaying graphic or offensive images.

B. Motion to Dismiss and Eleventh Amendment Immunity

The defendants present several arguments in favor of dismissal. The court finds that these arguments are either lacking in merit, or fail to provide a basis for dismissal of the entire action. In most cases, PETA could correct the alleged failures by either amending the pleadings or by the submitting additional facts. Accordingly, the motion to dismiss will be substantially denied.

1. Eleventh Amendment

The first argument advanced by the defendants is that they are immune under the Eleventh Amendment. (Dkt. 13, at 8–11). This is valid as far as any action against the State of Kansas itself, and against the KSFB itself, but not have against either a suit against Denny Stoecklein in his official capacity as General Manager of the KSFB, nor against the other individual members of the KSFB in their official capacities.

The Eleventh Amendment bars suits against the State and its agencies. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). But it does not bar actions for injunctive relief against individual defendants acting in their official capacity. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Ex parte Young ... proceeds on the fiction that an action against a state official seeking only prospective injunctive relief is not an action against the state and, as a result, is not subject to the doctrine of sovereign immunity.” Crowe & Dunlevy v. Stidham, 640 F.3d 1140, 1154 (10th Cir.2011) ( citing Pennhurst, 465 U.S. at 105, 104 S.Ct. 900).

The defendants argue that the nature of the claim against Stoecklein is “muddled,” in that he is named in the caption of the Complaint “in his representative capacity as he is GENERAL MANAGER OF THE KANSAS STATE FAIR BOARD.”

The court finds that this is an insufficient basis for dismissing the action as to the defendant Stoecklein; it would simply be delaying the ultimate decision. Further, the court reasonably infers that PETA is indeed suing Stoecklein in his official capacity. That interpretation would be consistent with the body of the Complaint, which specifies that Defendant Denny Stoecklein is the general manager of the Kansas State Fair Board,” (Dkt. 1 at ¶ 7), as well as PETA's stated position at the hearing.

2. Capacity to Sue or Be Sued

The defendants also argue that KSFB lacks the ability to sue or be sued under Kansas law. The defendants note that K.S.A. 74–521 grants the Board the power to “fully control and regulate the time and manner of holding the state fair,” but does not explicitly authorize the Board to sue or be sued. In this context, the defendants cite language from Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311 (1985), which they indicate is a quotation to Murphy v. City of Topeka, 6 Kan.App.2d 488, 491, 630 P.2d 186 (1981): “The legislature may create a separate governmental entity with the capacity to sue and be sued but such authority must be expressly created.” (Dkt. 13, at 11).

This quoted language belongs to neither the Kansas Supreme Court in Hopkins nor the Court of Appeals in Murphy. It is the Hopkins court quoting the trial court's findings.

More substantially, to the extent that the defendants suggest that the authorization to sue or be sued depends upon express or explicit statutory language, this is not the law in Kansas. See Board of Library Directors v. City of Fort Scott, 134 Kan. 586, 7 P.2d 533 (1932) (capacity to sue or be sued need not be express, but can be implied). In Board of Library Directors, the court held that the ability to own and control property, which was extended to a local library board, would be

nugatory unless the party vested with such power may call upon the courts to protect it in the ownership and use of such property. The board is a creature of the law, a legal entity, on which the statute confers powers and faculties which are of no force or effect unless it may vindicate the rights conferred in the courts.

7 P.2d at 535.

As more fully set out in the section below discussing the KSFB as a “state actor” for purposes of § 1983 liability, the Board is a creature of law, and a legal entity. It is authorized to “adopt rules and regulations” for the conduct of the State Fair. K.S.A. 74–523. The legislature, in abolishing the prior version of the fair board specified that [a]ll properties, moneys, appropriations, powers, duties and authority’ for the former board should be vested in the new. K.S.A. 74–524a. The board controls the fairgrounds, K.S.A. 2–202, and is authorized to enter into contracts and leases for the management of state fair and its property. K.S.A. 2–202, 2–205a, 2–213, 2–214. Such a broad authorization to control and manage property are a sufficient basis for finding that the KSFB has the capacity to sue and be sued.

Further, it may be noted that two federal courts have at least implicitly concluded that the KSFB has the capacity to be sued. See Chaffin v. Kansas State Fair Bd., 348 F.3d 850 (10th Cir.2003); overruled on other gds., as recognized in Cinnamon Hills Youth Crisis Center, Inc. v. Saint George City, 685 F.3d 917 (10th Cir.2012); Winslow v. Kansas Bd. of State Fair Mgrs., 512 F.Supp. 576 (D.Kan.1981).

3. Section 1983 “Persons”

Next, the defendants argue that the KSFB and the State of Kansas are not “persons” within the meaning of 42 U.S.C. § 1983, citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). And Will has indeed held that “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.” 491 U.S. at 71, 109 S.Ct. 2304. But this limitation is imposed on actions for damages, and Will expressly observed that [o]f course a state official in his or her official capacity, when sued for...

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