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UNITED STATES DISTRICT COURT MAINSTREAM LOUDOUN, et al. ) ) Plaintiffs ) v. ) Case No. CA-97-2049-A ) BOARD OF TRUSTEES OF THE ) LOUDOUN COUNTY LIBRARY, et al. ) ) Defendants. )
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS INDIVIDUAL DEFENDANTS
Defendants, by and through counsel, move this Court to dismiss the individual Defendants on the basis of their absolute and qualified immunity from this suit. Plaintiffs have brought suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against the Board of Trustees of the Loudoun County Public Library and certain individuals who have allegedly violated the First Amendment to the U. S. Constitution by adoption and application of the Loudoun County Public Library Internet Policy ("the Internet Policy"). Plaintiffs explain that "Defendants John J. Nicholas, Jr., Spencer D. Ault, Richard H. Black, Chris Howlett and Mary Ellen VanNederynen are members of the Board [of Trustees] who voted to adopt the policy" and that they "are sued here in their official and personal capacities." (Compl. at ¶ 26) Plaintiffs explain that "Defendant Douglas Henderson is the Director of Library Services" and he "is sued here in his official capacity." (Compl. at ¶ 26) Because Defendants Nicholas, Ault, Black, Howlett, and VanNederynen adopted the Internet Policy in their legislative capacity, the Board member Defendants are entitled to absolute immunity from suit. Because Defendants Nicholas, Ault, Black, Howlett, VanNederynen, and Henderson did not violate a clearly established constitutional right and/or could have reasonably believed that their conduct would not violate a clearly established right, the individual Defendants are entitled to qualified immunity from suit. Finally, because the Board of Trustees of the Loudoun County Public Library is named as a Defendant, the individual Defendants are not needed to ensure full relief to the Plaintiffs, if any relief is found. For these reasons, all of the individual Defendants should be dismissed. I. The Board member Defendants are entitled to absolute immunity from suit. It is well settled that, at the federal, state, regional and local levels, legislators are absolutely immune from suit for decisions made in their legislative capacity. See, e.g., Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 404 (1979) (legislators serving on regional entity are entitled to absolute immunity); Whitener v. McWatters, 112 F.3d 740, 745 (4th Cir. 1997) (where "Loudoun County Board of Supervisors acted in a legislative capacity . . . its action is protected by absolute legislative immunity"); Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir. 1980) ("County council members are absolutely immune when performing legislative acts").1/ In defining what shall constitute legislative action by an entity, the Fourth Circuit has explained that "legislative action typically involves the promulgation of prospective general rules, rather than actions taken against specified individuals." Whitener, 112 F.3d at 742, 745; see also Roberson v. Mullins, 29 F.3d 132 (4th Cir. 1993) ("actions are in a ‘legislative capacity’ if they are an ‘integral part’ of legislative actions undertaken by the local governmental body)"; Gravel v. United States, 408 U.S. 606, 625 (1972) (member of Congress acts in his legislative capacity if his action is "an integral part of the . . . processes by which members participate in . . . the consideration and passage or rejection of proposed legislation").2/ In the instant case, the Board member Defendants enjoy absolute immunity from liability for their decision to adopt the Internet Policy, because the decision was made in their legislative capacity. The Loudoun County Board of Trustees exists as a separate political subdivision pursuant to Va. Code § 42.1-36, which states: "[t]he members shall adopt such bylaws, rules and regulations for their own guidance and for the government of the free public library system as may be expedient." Under Virginia law, library boards are not units of county government but exist as separate and independent political subdivisions that "exercise a portion of the state’s sovereign power." 1993 Att’y Gen. Ann. Report 27, 31. Consistent with its political authority, on May 19, 1997, the Board of Trustees began to consider issues relating to Internet access at the Loudoun County public libraries. (Compl. at ¶ 61) At its June 16, 1997 meeting, the Board of Trustees discussed a proposed Internet policy and considered public comments. (Compl. at ¶ 63) At its meeting on July 21, 1997, the Board adopted an "Internet Use Policy." (Compl. at ¶ 67) At its September 15, 1997 meeting, the Board voted to reconsider the policy and began to consider another Internet access proposal. (Compl. at ¶ 70) Finally, at its meeting on October 20, 1997 meeting, the Board deliberated on and adopted the current "Policy on Internet Sexual Harassment" by a vote of 5 to 4. (Compl. at ¶ 74) The above acts amply demonstrate that Board members adopted the Internet Policy in their legislative capacities. See, e.g., Whitener, 112 F.3d at 745 (holding "Loudoun County Board of Supervisors acted in a legislative capacity when it voted to discipline" a fellow Board member); Berkley v. Common Council of City of Charleston, 63 F.3d 295, 302-03 (4th Cir. 1995) (en banc) (holding City Council’s decision to deny salary increases was a legislative act); Hollyday, 964 F.2d at 1443 (holding Board of Commissioner members’ decision to abolish county position occurred in members’ legislative capacities); Bruce, 631 F.2d at 280 (holding County Council members "were acting within the scope of their legislative activity when they voted on the controverted ordinances").3/ As a result of voting to adopt the Internet Policy, the Board member Defendants have been sued individually and in their official capacities. (Compl. at ¶ 26) However, "the flow of information through the [legislative] process could be severely jeopardized if every public meeting carried with it the threat of civil liability." Collison v. Gott, 895 994, 1008 (4th Cir. 1990) (Wilkinson, J., concurring in the judgment). Here, there can be no question that the Board member Defendants acted in their legislative capacity when they voted to adopt the Internet Policy. Thus, the Board member Defendants Nicholas, Ault, Black, Howlett and VanNederynen enjoy absolute immunity from suit in their individual and official capacities, cannot be sued for injunctive or monetary relief, and cannot be liable for an award of attorney’s fees under 42 U.S.C. § 1988. See Supreme Court v. Consumers Union, 446 U.S. 719, 724 (1980). II. The individual Defendants are entitled to qualified immunity from suit. Public officials are entitled to qualified immunity from liability arising from their official discretionary acts that do not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Malley v. Briggs, 475 U.S. 335, 345 (1986). Under this test, courts conduct the following three-step analysis: (1) identify the right allegedly violated; (2) decide whether that right was clearly established at the time of the alleged violation; and, if so, (3) determine whether a reasonable person in the official’s position would have known that the actions violated that right. Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). If the court finds that "the right was not clearly established at the relevant time or [that] a reasonable [official] might not have known his or her conduct violated that right, the [official] is entitled to immunity." Smith v. Reddy, 101 F.3d 351, 354 (4th Cir. 1996). Applying this test demonstrates that the individual Defendants, comprised of the Board member Defendants and Defendant Henderson, are also entitled to qualified immunity from suit.4/ Under the first step of the analysis, the "proper focus for courts is not upon the right at its most general or abstract level, but at the level of its application to the specific conduct being challenged." Jackson v. Long, 102 F.3d 722. 727 (4th Cir. 1996); Zepp v. Rehrmann, 79 F.3d 381, 385 (4th Cir. 1996). Thus, a plaintiff must articulate the right allegedly violated in a "particularized" and "relevant" way and cannot assert the violation of some "overarching entitlement" to a named right. Cromer v. Brown, 88 F.3d 1315, 1324 (4th Cir. 1996); Pinder v. Johnson, 54 F.3d 1169, 1173 (4th Cir.) (en banc), cert. denied, 116 S.Ct. 530 (1995). Here, the Plaintiffs allege that the Defendants have violated their "rights": to have the library provide unfiltered access to constitutionally protected information available on the Internet; to "choose for themselves and their families what constitutionally protected information they can read in the public libraries"; and to access Internet website information at a private location away from onlookers. (Compl. at ¶¶ 14, 15-25, 116, 134 and 140) While Plaintiffs frame the first alleged right as arising under the First Amendment, for the two remaining alleged rights, Plaintiffs do not allude to any specific constitutional or other federal right. Because Plaintiffs do not articulate the second two alleged rights in any "particularized way," the individual Defendants are entitled to qualified immunity for conduct relating to these alleged rights. Under the second step of the analysis, the "decisive fact is not that [the official’s] position turned out to be incorrect, but that the question was open at the time he acted." Mitchell v. Forsyth, 472 U.S. 511, 535 (1985). Here, Plaintiffs have asserted that adopting an Internet Policy, which employs a software system to restrict patrons’ access to certain websites and which provides a "Request to Review Blocked Site" procedure in order that patrons may request that a website be unblocked, violates the First Amendment. However, for the reasons set forth in Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss for Failure to State a Claim or, in the alternative, for Summary Judgment incorporated herein, it cannot be argued that a patron’s right to be free from such restrictions was clearly established at the time of the alleged violation. Simply put, there was not (and is not) clearly established case law supporting that the Internet Policy violates the First Amendment. Thus, the individual Defendants are entitled to qualified immunity from suit.5/ The third step of the analysis further demonstrates that the individual Defendants are entitled to qualified immunity from suit. Under this step, "so long as the [official’s] actions, viewed from the perspective of the [official] at the time, can be seen within the range of reasonableness, then no liability will attach." Cromer, 88 F.3d at 1325-26 (4th Cir. 1996) (quoting Pinder, 54 F.3d at 1173). This "objectively reasonable official" standard is intended to protect "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Thus, the standard protects public officials "from ‘bad guesses in gray areas’ and ensures that they are liable only for ‘transgressing bright lines.’" Wilson v. Collins, 110 F.3d 1071, 1074 (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)). Here, a public official could reasonably not have known that adopting an Internet Policy, which employs a software system to restrict patrons’ access to certain websites and which provides a "Request to Review Blocked Site" procedure in order that patrons may request that a website be unblocked, violates the First Amendment. The individual Defendants’ conduct "can be seen within the range of reasonableness." At each step of the qualified immunity analysis it is clear that the individual Defendants are entitled to qualified immunity from suit. Thus, the individual Defendants cannot be sued in their individual capacity, cannot be sued for any monetary relief, and cannot be liable for an award of attorney’s fees under 42 U.S.C. § 1988. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As a final matter, although qualified immunity does not protect the individual Defendants from suit in their official capacity for injunctive relief, Plaintiffs’ injunctive claim seeks only to "[p]ermanently enjoin Defendants from enforcing the Policy’s requirements." (Compl. at Relief Requested) Courts have consistently recognized that such claims for injunctive relief, against persons in their official capacity and the governmental entity they serve, are essentially just claims against the entity itself. See Monell v. Dep’t of Social Services of City of N.Y., 436 U.S. 658, 690 n. 55 (1978) ("official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent"). Likewise, the injunctive claim against the individual Defendants appears only to be a claim against the Defendant Board of Trustees of the Loudoun County Public Library itself. As a result, should the Plaintiffs obtain an injunction, Plaintiffs will obtain full relief as against the Board of Trustees of the Loudoun County Public Library. Thus, the individual Defendants should not be sued in their official capacity because only the Defendant Board of Trustees of the Loudoun County Public Library is a "real party in interest." Kentucky v. Graham, 473 U.S. 159, 165-67 & n. 14 (1985) (where the entity is itself being sued, a suit naming the officials in their official capacity is "redundant"). III. Conclusion For the foregoing reasons, Defendants move the Court to order that Defendants Nicholas, Ault, Black, Howlett, VanNederynen, and Henderson be dismissed from this suit. Respectfully submitted,
By: /s/ Kenneth C. Bass, III (VSB #001021) 2010 Corporate Ridge, Suite 400
February 2, 1998
Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives. Tenney v. Brandhove, 341 U.S. 367, 377 (1951); see also Hollyday v. Ratcliff, 964 F.2d 1441, 1443 (4th Cir. 1991) ("legislators must be permitted to discharge their legislative duties without fear of being subjected to the cost and inconvenience of a trial at which their motives come under scrutiny").
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