West Virginia Pride, Inc. v. Wood County, W. Va.

• Decision Date: 14 January 1993
• Docket Number: Civ. A. No. 6:92-803.
• Citation: 811 F. Supp. 1142
• Court: U.S. District Court — Southern District of West Virginia
• Parties: WEST VIRGINIA PRIDE, INC. d/b/a The Lion's Den, et al., Plaintiffs, v. WOOD COUNTY, WEST VIRGINIA, et al., Defendants.

811 F. Supp. 1142

WEST VIRGINIA PRIDE, INC. d/b/a The Lion's Den, et al., Plaintiffs, v. WOOD COUNTY, WEST VIRGINIA, et al., Defendants.

Civ. A. No. 6:92-803.

United States District Court, S.D. West Virginia, Parkersburg Division.

January 14, 1993.

COPYRIGHT MATERIAL OMITTED

John A. Kessler, Hunt & Wilson, Charleston, WV, J. Michael Murray, Jeremy A. Rosenbaum, Berkman, Gordon, Murray & Palda, Cleveland, OH, for plaintiffs.

Jeffrey B. Reed, Pros. Atty., Michele Rusen, Asst. Pros. Atty., Parkersburg, WV, for defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are Plaintiffs' motions for summary judgment and Defendants' motion to dismiss. Since matters outside of the pleadings will be considered, the Court treats the filings as cross motions for summary judgment. The Court consolidated this action on October 5, 1992.¹ Counsel represent that this matter is ripe for adjudication. The Court GRANTS Plaintiffs' respective motions and DENIES Defendants' motion, with exception to the dismissal of certain parties.

Under Rule 56(e), Federal Rules of Civil Procedure, summary judgment is proper only:

"If the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."

A principal purpose of summary judgment is to isolate and dispose of meritless litigation. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The party moving for summary judgment has the burden to show initially the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). However, once the moving party has met its initial burden, the burden shifts to the nonmoving party to "establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552. To discharge this burden, the nonmoving party cannot rely on its pleadings, but instead must have evidence showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553.

I. FACTS

The parties stipulate to the material facts of this case. See J. Stip. of Parties (hereinafter "JSP"). The West Virginia Legislature enacted a law authorizing all county commissions to adopt a model anti-obscenity ordinance (hereinafter "Ordinance"). W.Va.Code § 7-1-4 (1990) (hereinafter "Statute" or "§ 7-1-4"). The Statute provides the text of the Ordinance which the commissions might adopt. Id. at 7-1-4(b). The Legislature authorized only minor modifications by the counties choosing to legislate on this subject matter. Id. at 7-1-4(a).

On July 27, 1992, the Wood County Commission adopted the Ordinance, which mirrors the permissible language of the Statute. Defendants stipulate that materials carried by three of the four Plaintiff bookstores fall within the Ordinance's definition of "obscene." JSP at ¶ 3. Further, Defendants Greiner and Reed state they

"— unless restrained or enjoined by this Court, or unless Plaintiff Businesses cease disseminating materials defendants would contend fall within the definition of "obscene" as set forth in the Ordinance — will in all likelihood investigate Plaintiff Businesses with a view toward initiating criminal prosecutions against Plaintiff Businesses for the dissemination of materials allegedly proscribed under the Ordinance."

JSP at ¶ 5; see JSP at ¶ 6.

The Wood County Ordinance was effective August 31, 1992. However, this Court entered a Temporary Restraining Order on August 28, 1992, prohibiting the Ordinance's enforcement. The parties stipulated to the entry of a preliminary injunction pending final adjudication.

Plaintiffs, via 42 U.S.C. § 1983, allege the Ordinance and Statute violate the First and Fourteenth Amendments of the United States Constitution.

II. STANDING

Article III of the Constitution limits the jurisdiction of federal courts to actual "cases and controversies." See, e.g., Mobil Oil Corp. v. Attorney General of Com. of Va., 940 F.2d 73, 75 (4th Cir.1991). A necessary element of a case or controversy is a plaintiff's standing to sue. Id. A Plaintiff must establish an injury in fact: "a threatened or actual injury resulting from the putatively illegal action." Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988) (citations omitted). The question is whether a party has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); American Booksellers Ass'n, Inc., v. Com. of Va., 802 F.2d 691, 693 (4th Cir.1986) (citations omitted), vacated on other grounds, 488 U.S. 905, 109 S.Ct. 254, 102 L.Ed.2d 243 (1988); John E. Nowak, et al., Constitutional Law 81 (2d ed. 1983).

However, in First Amendment statutory challenges "courts justifiably often lessen standing requirements." American Booksellers, 802 F.2d at 694 n. 4; see also Secretary of State of Maryland v. J.H. Munson Co., Inc., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984) ("when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged"). The standing requirement is met, inter alia, when plaintiffs are forced "to take significant and costly compliance measures or risk criminal prosecution." American Booksellers, 484 U.S. at 392, 108 S.Ct. at 642. Further, while a party may usually only seek redress for its own injury, third-party standing is often permitted in First Amendment litigation. Plaintiffs may assert the rights of others "because of a judicial ... assumption that the statute's very existence may cause others not before the court to refrain from" protected speech. Id. at 392-93, 108 S.Ct. at 643 (quoting Secretary of State of Maryland v. J.H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984) and Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)).

After previously stipulating otherwise, JSP at ¶¶ 3-6, Defendants belatedly challenge Plaintiffs' standing under § 1983.² Defendants essentially argue that since the Ordinance has yet to go into effect, no deprivation of constitutional rights has occurred. Defendants also assert that Plaintiffs can only offer mere "conjecture and speculation" as to the manner of the Ordinance's enforcement.

Defendants stipulate, however, that at least three Plaintiff bookstores sell "obscene" materials and would likely be prosecuted unless these Plaintiffs remove the offending material from their shelves — an action which Plaintiffs allege would result in economic harm. See Pl.'s Compl. at ¶ 18; Pls.' Compl. at 3-4. The assertion of a lack of injury due to current nonenforcement of the Ordinance is equally meritless. It was resolved previously by the most authoritative court:

We are not troubled by the pre-enforcement nature of this suit. The State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise. We conclude that plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them. Further, the alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution.

American Booksellers, 484 U.S. at 393, 108 S.Ct. at 643 (emphasis added) (cited in Mobil Oil, 940 F.2d at 76).

Considering Plaintiffs' Hobson's choice of either suffering likely prosecution or economic hardship, the Court concludes they have demonstrated standing adequately.³

The Court also addresses the standing of Plaintiff Boggs. Who alleges she is

a reader of books, a listener to records, and a viewer of movies.... threatened with denial of access to the materials which interest her because the ordinance is so vague that distributors are likely to withdraw materials which are constitutionally protected.

Pls.' Compl. at 3.

Defendants Reed and Greiner virtually promised to prosecute the Plaintiff bookstores unless enjoined. Should this occur, or if the threat of prosecution leads the stores to stop selling the proscribed material, Ms. Boggs would no longer have reasonable access to her choice of books, records, and movies, all of which gives her a personal stake in the litigation. The Ordinance's putative burden on constitutionally protected speech additionally amounts to "`a threatened or actual injury.'" American Booksellers, 484 U.S. at 392, 108 S.Ct. at 642 (citation omitted). The Court concludes Plaintiff Boggs also has standing.

III. IMMUNITY

It is well-settled in this Circuit that local legislators enjoy absolute immunity from suit for decisions made in their capacity as legislators. Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th Cir.1989); Scott v. Greenville County, 716 F.2d 1409, 1422 (4th Cir.1983); Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir.1980) (holding "if legislators of any political subdivision of a state function in a legislative capacity, they are absolutely immune from being sued under the provisions of § 1983").

Defendants Grapes, Grimm, and Shaver are members of the Wood County Commission. Plaintiffs assert that while these Defendants are immune for acts performed in their legislative capacity, they are subject to suit for their enforcement or administrative acts. See Front Royal, 865 F.2d at 79. Plaintiffs have made no showing, however, that these commissioners will have any responsibility for enforcing or administering the Ordinance. In fact, Plaintiffs' complaint states that Defendant...