Opinion
Civil No. 4:18cv121
01-28-2020
David L. JUDSON, Plaintiff, v. BOARD OF SUPERVISORS OF MATHEWS COUNTY, VIRGINIA, Defendant.
Roger S. Martin, for Plaintiff Christopher M. Mackenzie, L. Lee Byrd, for Defendant
Roger S. Martin, for Plaintiff
Christopher M. Mackenzie, L. Lee Byrd, for Defendant
OPINION AND ORDER
Mark S. Davis, CHIEF UNITED STATES DISTRICT JUDGE
This matter is before the Court on a Motion to Dismiss filed by defendant Board of Supervisors of Mathews County, Virginia ("Board" or "Defendant"), pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Def.'s Mot., ECF No. 13. For the reasons stated below, Defendant's Motion to Dismiss is GRANTED and this case shall be DISMISSED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts recited here come from the Amended Complaint and are assumed true only to decide the motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.").
A. Factual Background
Plaintiff David L. Judson ("Judson" or "Plaintiff") resides on Gwynn's Island in Mathews County, VA ("County"). Am. Compl. ¶¶ 4, 16-20, ECF No. 1. Plaintiff's home fronts the waters of Milford Haven. Id. In 2004, an aquaculture entrepreneur ("Entrepreneur") purchased a seafood business and its land on the shore of Milford Haven, which is accessible by an easement across Plaintiff's property. Id. ¶ 23. The land purchased by the Entrepreneur included an inland one-acre parcel of land that was, until August of 2018, zoned residential. Id. ¶ 24.
Around January of 2018, the Entrepreneur or his representative began discussing with the County a plan to install oyster floats (a method of commercial oyster farming) in the waters of Milford Haven ("Oyster Floats Proposal"). Id. ¶¶ 8-9, 16. The Oyster Floats Proposal would involve the installation of "some 1,400 black plastic floats ... in an area of 5.5 acres of navigable waters of the Haven, as close as a few hundred feet from Judson's and others' waterfront homes." Id. ¶ 21. Then, in February of 2018, the Entrepreneur requested that the County rezone the one-acre parcel of land from residential to business ("Rezoning Request"), in part to facilitate the Oyster Floats Proposal by giving the Entrepreneur a place to store oyster cages and equipment. Id. ¶¶ 27-28. In March of 2018, the Entrepreneur applied to the Virginia Marine Resources Commission ("VRMC") for a permit to implement his Oyster Floats Proposal. Id. ¶ 29.
After giving notice pursuant to Virginia Code § 15.2-2204(A), the Board and the County Planning Commission ("Commission") conducted a joint public hearing on the Rezoning Request on June 19, 2018 ("Public Hearing"). Id. ¶¶ 31-32. Plaintiff alleges that, prior to the Public Hearing, the Board was aware both that the residents of Gwynn Island opposed the Rezoning Request and that at least some residents of Gwynn Island intended to speak in opposition to the Rezoning Request at the Public Hearing. Id. ¶¶ 12, 36. Plaintiff further alleges that the chair of the Board was aware, in advance of the Public Hearing, that the County planning and zoning department was in favor of granting the Rezoning Request. Id. ¶ 39.
At the beginning of the Public Hearing, members of the public, including Plaintiff, signed up to speak. Id. ¶¶ 37-37(a). Plaintiff alleges that the chair of the Board knew which members of the public signed up based on the sign-up sheets and further knew that all of the members of the public in attendance wished to speak against the Rezoning Request. Id. ¶ 37. The chair of the Board began the Public Hearing by addressing the members of the public, including Plaintiff, as follows: "And now we'll enter into our public hearing and let us remember, citizens, that this public hearing is on rezoning. Not on oysters." Id. ¶ 38.
Unless otherwise noted, the Court has removed all emphasis from quotations from the Amended Complaint for formatting purposes.
The Board then allowed a "representative" of the County's planning and zoning department to present a staff report in favor of granting the Rezoning Request. Id. ¶ 40. In his statements, the representative referenced the oyster floats as follows:
It is the request that [the Entrepreneur] to have [sic] this parcel rezoned from R-2 to B-1 for the storage of his oyster float cages.
....
The economy section of the comprehensive plan references multiple supporting claims as to why water based businesses and aquaculture should be preserved or encouraged in Mathews County, such as
Mathews County has a proud traditional heritage in water based businesses.
Id. The Entrepreneur was then allowed to speak and also referenced the oyster floats, stating:
Our plan, again, is simple. We want to rezone this piece of parcel to support our aquaculture business. Our plan is to clear the lot while leaving a natural buffer around the perimeter. The aquaculture business is gear intensive. It takes a lot of gear to operate an oyster aquaculture business, and, quite simply, we don't have a place to store that gear.
Id. ¶ 41. Furthermore, during the Entrepreneur's presentation, one member of the Commission referenced the oyster floats, stating: "This expansion in one way, which is all your floats, would eliminate maybe the noise ...." Id. ¶ 42.
After the representative and the Entrepreneur spoke in favor of the Rezoning Request, members of the public were allowed to address the Board and Commission. Id. ¶ 43. Eighteen members of the public, including Plaintiff, spoke at the Public Hearing, all of whom spoke in opposition to the Rezoning Request. Id. ¶¶ 44-44(a). After the first member of the public spoke, a member of the Commission asked the Board chair if they should "make it clear to the speakers and audience that this is a public hearing for land use" to which the chair replied, "I made that clear at the start of this." Id. ¶¶ 45-46. The member of the Commission then stated:
We're going to reiterate it over and over again. If you bring up oysters that's not our ball of wax. Save it for VMRC. This is land use and land use only. That's what you need to keep your comments to. So keep that in mind that we are here for land use.
Id. ¶ 47. After this exchange, any time a member of the public referenced the Oyster Floats Proposal, the same member of the Commission visibly expressed disapproval, such as by shaking her head. Id. ¶ 48. Plaintiff alleges that "[t] hose speaking in favor of the request and proposal were allowed to draw connections between the two in a way that those speaking against the request and proposal were not." Id. ¶ 56. Plaintiff further alleges that such statements and visible displays of disapproval were intended as speech restrictions that were not viewpoint neutral and had the effect of unconstitutionally restricting the speech of members of the public who were opposed to the Rezoning Request. Id. ¶ 49.
With respect to the statements made by Plaintiff during the Public Hearing, Plaintiff alleges that, but for the speech restrictions, he had planned to include in his prepared remarks the sentence: "In closing if this rezoning and VMRC permit is approved it will set a precedent that will leave all waterfront properties at risk." Id. ¶¶ 50(a)-(c). Instead, Plaintiff ended his remarks by saying: "Please deny this zoning request. Thank you." Id. ¶ 50(d). Plaintiff further alleges that at least two other members of the public were adversely impacted by the speech restrictions, one of whom stated at the Public Hearing:
I'm here tonight to speak only of the land parcel, but I had planned to talk about the whole project because it's a holistic kind of project. But since you insist I will cut down what I was going to say.
....
I won't mention the name oyster because you don't want to hear that, but even on land it's still an industrial project, and it will cause, it's bound to cause problems ....
Id. ¶ 51. Another member of the public is alleged to have stated:
I have heard from three comments from the board members that we need to separate this from a land issue only, and
I respectfully contend that is impossible. The purpose of the request for this rezoning is to store floats, 712 of them, to destroy five and a half acres of public waterway in one of the busiest and most beautiful bodies of water there is. I've heard you say it is a VMRC issue and I'm not sure we can count on VMRC to do the right thing on that. I believe that you can do the right thing to the citizens that you represent ....
Id. ¶ 58.
After all of the members of the public who had indicated a desire to speak had spoken, the chair of the Board closed the Public Hearing. Id. ¶ 63. Prior to the end of the meeting at which the Public Hearing had been conducted, a Board member asked the County planning and zoning administrator whether there would be another public hearing, to which the administrator replied that there would not. Id. ¶ 64. In July of 2018, the Commission "met and recommended that the Board grant the Rezoning Request." Id. ¶ 67. At the Board's monthly meeting in July of 2018–without giving prior notice that members of the public would be able to speak regarding the Rezoning Request–the Board permitted a member of the public to speak in favor of the Rezoning Request after members of the public who were opposed to the Rezoning Request had left the room. Id. ¶ 68. Then, at the Board's monthly meeting in August of 2018–again without giving notice that the public would be allowed to speak–the Board allowed the members of the public in attendance to speak against the Rezoning Request without the speech restrictions that were imposed during the Public Hearing. Id. ¶ 69. The Board then granted the Rezoning Request. Id. ¶ 71. In September of 2018, the VMRC issued a permit to implement the Oyster Floats Proposal, a decision that Plaintiff and others appealed to the County Circuit Court in October of 2018. Id. ¶¶ 29(a)-(b). The Entrepreneur died in January of 2019, after which the VMRC ruled that his death voided the VMRC Permit. Id. 29(d). An application for a second VMRC Permit regarding the Oyster Floats Proposal was subsequently filed by an entity named Damfino, LLC. Id. 29(e). Said application is pending. Id. 29(g).
B. Procedural Background
On September 21, 2018, Plaintiff filed suit against Defendant (the "Complaint"). Compl., ECF No. 1. The Complaint included two counts: (1) Violation of the First Amendment to the United States Constitution by restricting speech at the Public Hearing; and (2) Violation of the Code of Virginia § 15.2-2204(A) by implementing restrictions that denied the public the ability to present their views at the Public Hearing. Id. On October 17, 2018, Defendant filed a Motion to Dismiss the Complaint. Mot. to Dismiss, ECF No. 6. On June 20, 2019, following the appropriate briefing by both parties, this Court entered an Opinion and Order granting in part Defendant's Motion to Dismiss and providing Plaintiff with leave to amend the Complaint. Op. and Order, ECF No. 11. Plaintiff filed an Amended Complaint on July 9, 2019. Am. Compl., ECF No. 12. The Amended Complaint included the same two counts as the Complaint. Id.
The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I (emphasis added). Plaintiff's First Amendment claim proceeds pursuant to 42 U.S.C. § 1983. Under 42 U.S.C. § 1983, a plaintiff may pursue a private right of action if a person, acting under color of state law, deprives the plaintiff of rights secured by the United States Constitution or conferred by a law of the United States. Wahi v. Charleston Area Medical Center, Inc., 562 F.3d 599, 615 (4th Cir. 2009).
On July 23, 2019, Defendant filed the instant Motion to Dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6), as well as a memorandum in support of its motion. Mot. to Dismiss, ECF No. 13; Def.'s Memo., ECF No. 14. On August 5, 2019, Plaintiff filed a Memorandum in Opposition to Defendant's June 21, 2019 Motion to Dismiss, Pl.'s Memo., ECF No. 15, to which the Defendant replied on August 9, 2019, Def.'s Reply, ECF. No. 16.
II. LEGAL STANDARD
A. Rule 12 (b) (1)
A motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, may, as is the case here, attack a complaint on its face, insofar as the complaint fails to allege facts upon which the court can base jurisdiction, or it may attack the truth of any underlying jurisdictional allegations contained in the complaint. Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) ; Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In the former situation, known as a facial challenge, the court is required to accept all of the complaint's factual allegations as true, "and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a 12(b)(6) consideration." Adams, 697 F.2d at 1219.
The Court notes that in the Rule 12(b)(1) "Legal Standard" section of its prior Opinion in this matter, ECF No. 11, it inadvertently indicated that the standing challenge put forth by Defendant was not a facial challenge. Such misstatement had no impact on the Court's analysis or decision, as the remainder of the Opinion correctly applied the facial challenge standard.
B. Rule 12(b) (6)
The Rule 12(b)(6) standard of review permits dismissal when a complaint fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A complaint fails to state a claim if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Though a complaint need not be detailed, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955 ; see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
A motion to dismiss tests the sufficiency of a complaint without resolving factual disputes, and a district court " ‘must accept as true all of the factual allegations contained in the complaint’ and ‘draw all reasonable inferences in favor of the plaintiff.’ " Kensington Volunteer Fire Dep't v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) ). Although the truth of the facts alleged is presumed, district courts are not bound by the "legal conclusions drawn from the facts" and "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000) ; see Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). In order to survive a motion to dismiss under Rule 12(b)(6), "a complaint must include ‘more than an unadorned, the-defendant-unlawfully-harmed-me accusation.’ " Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ).
III. DISCUSSION
In the instant Motion to Dismiss, Defendant presents four arguments, namely that: (1) Plaintiff lacks standing to bring his First Amendment claim; (2) Plaintiff has failed to plead facts sufficient to state a claim under the First Amendment; (3) the Court lacks jurisdiction to hear Plaintiff's Code of Virginia § 15.2-2204(A) claim; and (4) Plaintiff has failed to plead facts sufficient to state a claim under the Code of Virginia § 15.2-2204(A). Each of those arguments are considered below.
A. Standing for First Amendment Claim
Article III of the Constitution "limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’ " Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). One component of the case or controversy limitation on jurisdiction is standing, which requires that the plaintiff " ‘allege[ ] such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction." Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343, (1975) ). "The standing requirement stems from Article III, ... [and] ‘is a threshold jurisdictional question’ that ensures a suit is ‘appropriate for the exercise of the [federal] courts' judicial powers.’ " Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 343 (4th Cir. 2017) (quoting Pye v. United States, 269 F.3d 459, 466 (4th Cir. 2001) ).
In order to demonstrate standing, Plaintiff must show that he has complied with both "constitutional" requirements and "prudential" restrictions. To satisfy the "irreducible constitutional minimum" requirements, that are "an essential and unchanging part of the case-or-controversy requirement of Article III," Plaintiff must show that three elements have been satisfied: (1) an "injury in fact;" (2) a "causal connection between the injury and the conduct complained of;" and (3) redressability, i.e., that the injury likely "will be redressed by a favorable decision" of the court. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (internal quotation marks omitted).
The issue of prudential restrictions was discussed at length in this Court's prior Opinion. See ECF No. 11 at 24-26. Prudential restrictions "prohibit a litigant from pursuing another person's legal rights in court," id. at 24, and were relevant to the prior Motion to Dismiss because the original Complaint did not include any allegation that Plaintiff himself intended to speak at the Public Hearing, instead alleging only that other members of the public intended to speak but were chilled from doing so. As the Amended Complaint includes allegations that Plaintiff himself was chilled from speaking at the Public Hearing, see Am. Compl. ¶ 75, and given that Defendant has not argued in the instant Motion to Dismiss that Plaintiff's claim runs afoul of prudential restrictions, the Court need not revisit the issue in this Opinion.
The thrust of Defendant's contention that Plaintiff lacks standing goes to the "injury in fact" element. In a case concerning a past injury, i.e., an injury that has already been realized, the Supreme Court has held that an injury sufficient to satisfy Article Ill's injury-in-fact requirement "must be concrete and particularized and actual or imminent, not conjectural or hypothetical." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (internal quotation marks omitted); see also Bos. Correll v. Herring, 212 F. Supp. 3d 584, 599 (E.D. Va. 2016). "An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Susan B. Anthony List, 573 U.S. at 158, 134 S.Ct. 2334 (internal quotation marks omitted). Importantly, "[t]he Supreme Court of the United States has explained that standing requirements are somewhat relaxed in First Amendment cases." Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (citing Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) ).
The United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") has found that, "[i]n First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of ‘self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.’ " Id. (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) ). "In order to establish standing, Plaintiffs must allege with sufficient facts that their speech rights were chilled and that this chilling or self-censorship was both perceptible and objectively reasonable." Vista-Graphics, Inc. v. Va. Dep't of Transp., 171 F. Supp. 3d 457, 468 (E.D. Va. 2016), aff'd, 682 F. App'x 231 (4th Cir. 2017). Here, Plaintiff has alleged a past injury in stating that the "Speech Restrictions prevented or chilled [him] from presenting his views that were relevant to the Board's consideration of the Rezoning Request" during the Public Hearing. Am. Compl. ¶ 75.
Defendant articulates a facial challenge under Rule 12(b)(1) to Plaintiff's First Amendment claim by asserting that Plaintiff has not adequately alleged that he suffered an injury to his First Amendment rights because he has not established that his selfcensorship was "reasonable under the circumstances." Def.'s Memo at 3. Defendant argues that "there must be reasonable threat of penalty leading to the self-censorship," and that "[w]ithout such a reasonable threat, there can be no injury in fact." Id. at 4. This slightly misstates the legal standard regarding a past, realized injury, which requires not that a "reasonable threat" was made but only that "[a]ny chilling effect must be objectively reasonable." Cooksey, 721 F.3d at 236 (4th Cir. 2013) (quoting Benham, 635 F.3d at 135 ). Thus, while allegations of "subjective chill" are not enough to establish standing, id. (quoting Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) ) (internal quotation marks omitted), "[g] overnment action will be sufficiently chilling when it is likely to deter a person of ordinary firmness from the exercise of First Amendment rights," Benham, 635 F.3d at 135 (internal quotation marks omitted).
Here, Plaintiff has met his burden of pleading facts to establish that the alleged chilling of his speech was objectively reasonable. Plaintiff alleged that it was "[s]olely because of the Speech Restrictions"–i.e., statements from the Board that the Public Hearing was on "land use and land use only," not on oysters, and " [t] hat's what you need to keep your comments to"–that he chose "not to include in his remarks to the Board and Commission the penultimate sentence ... of the planned written remarks he had wished to make at the Public Hearing." Am. Compl. ¶¶ 47, 50(b). Plaintiff and the other attendees of the Public Hearing were told directly by the Board not to speak on a certain subject, and because of those statements, Plaintiff chose not to. The Board need not have articulated any explicit threats of potential punishment in order for Plaintiff's decision to self-censor to be objectively reasonable. Contrasting two cases that were cited to by Defendant in its briefs, Vista-Graphics, Inc. v. Va. Dep't of Transp., 171 F. Supp. 3d 457 (E.D. Va. 2016), aff'd, 682 F. App'x 231 (4th Cir. 2017) and Cooksey v. Futrell, 721 F.3d 226 (4th Cir. 2013), helps illustrate this point.
In Vista-Graphics, the plaintiffs alleged that the Virginia Department of Transportation had unconstitutionally restricted what materials could be placed in state-owned Welcome Centers, but the court found that the plaintiffs had failed to plead an injury-in-fact because their self-censorship was not objectively reasonable. 171 F. Supp. 3d at 470. The key facts supporting the court's finding were that the plaintiffs did "not allege that Defendants ha[d] ever rejected or even threatened to reject one of Plaintiffs' guides for placement in the Welcome Centers" and that the plaintiffs "admit[ted] that their self-censorship was not the result of any actions taken or advice given by the State but solely a result of their knowledge of the restrictions and fear of the consequences of enforcement." Id. at 468-69. Conversely, in Cooksey, the Fourth Circuit held that the plaintiff had "sufficiently shown that he has experienced a non-speculative and objectively reasonable chilling effect of his speech due to the actions of the" North Carolina Board of Dietetics and Nutrition ("State Board"), when the plaintiff alleged that he had self-censored in response to "unsolicited written and oral correspondence from the State Board" suggesting several specific changes to the plaintiff's website. 721 F.3d at 236-37. In reaching such finding, the Fourth Circuit stated that the "most telling" fact was that the plaintiff "actually ceased expressing opinions" on his website after receiving such correspondence from the State Board. Id. at 236 (internal quotation marks omitted).
The facts alleged by Plaintiff more clearly align with those of Cooksey than those of Vista-Graphics. Here, Plaintiff has alleged specific self-censorship in response to unsolicited oral instructions from the Board not to broach certain topics at the Public Hearing. This distinguishes Plaintiff's claim from the plaintiffs in Vista-Graphics, who "admit[ted] that their self-censorship was not the result of any actions taken or advice given by the State," 171 F. Supp. 3d at 469, and aligns with the fact in Cooksey that the Fourth Circuit described as the "[m]ost telling," namely that Plaintiff "actually ceased expressing opinions" in response to government actions. 721 F.3d at 236 (internal quotation marks omitted). In further support of the objective reasonableness of such alleged chilling, Plaintiff provided quotations from several other individuals at the Public Hearing indicating that they too were chilled from making certain statements. See Am. Compl. ¶ 51 ("I had planned to talk about the whole project .... [b]ut since you insist I will cut down what I was going to say.") and ("I won't mention the name oyster because you don't want to hear that"). The fact that other members of the public also are alleged to have self-censored in direct response to the Board's statements buttresses the objective reasonableness of Plaintiff's own self-censorship. Accordingly, the Court concludes that Plaintiff has pled sufficient facts to support a finding that his speech was chilled by the actions of the Board and that the chilling was objectively reasonable, and thus has sufficiently pled a First Amendment injury-in-fact.
In Defendant's Reply Brief, ECF No. 16, Defendant appears to expand its earlier standing argument–i.e., that Plaintiff's alleged self-censorship caused by the speech restrictions was not objectively reasonable because such restrictions would not deter a person of ordinary firmness from exercising their free speech rights–by adding that Plaintiff lacks standing because he "did not have a legally protected interest [in the first place] in speaking on topics unrelated to the purpose of the limited public forum." Id. at 2, 92 S.Ct. 2318. In doing so, Defendant moves past the issue of whether the speech restrictions had an objectively reasonable chilling effect by adding an argument concerning the legitimacy of Plaintiff's underlying interest in speaking on certain topics at the Public Hearing, thereby "put[ing] the merits cart before the standing horse," Cooksey, 721 F.3d at 239 (quoting Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006) ), as Defendant's argument concerning the scope of the topics permitted at the limited public forum is "essentially an argument on the merits of Plaintiff's claim, which should be properly reserved for the Court's analysis only after it determines that Plaintiff has standing." Hewett v. City of King, 29 F. Supp. 3d 584, 600 (M.D.N.C. 2014) ; see also Initiative & Referendum Inst., 450 F.3d at 1093 ("[w]here the plaintiff presents a nonfrivolous legal challenge, alleging an injury to a protected right such as free speech, the federal courts may not dismiss for lack of standing on the theory that the underlying interest is not legally protected."). The Court will consider such argument in the section below–which addresses Defendant's argument that Plaintiff's claim runs afoul of Rule 12(b) (6) –but it does not impact the Court's finding that Plaintiff has adequately pled a First Amendment injury-in-fact.
Accordingly, the Court finds that Plaintiff has alleged sufficient facts to establish that he has standing to bring his First Amendment claim.
B. Failure to State a First Amendment Claim
Defendant's second argument is that Plaintiff's First Amendment claim should be dismissed pursuant to Rule 12(b)(6) because it fails to state a claim under the First Amendment. In particular, Defendant argues that no First Amendment violation occurred because: (1) the Board permissibly restricted topics at a limited public forum in a reasonable and viewpoint neutral manner; and (2) the Board did not engage in behavior that was adequately "chilling" to constitute a violation of the First Amendment. Def.'s Memo at 7-12. These arguments are considered below.
1. Limited Public Forum Restrictions
A limited public forum is "a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects." Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). In this case, the parties appear to agree that the Public Hearing constituted a limited public forum, see Am. Compl. ¶ 52; Def.'s Memo at 6, and the Court concurs in such assessment.
"When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified in reserving [its forum] for certain groups or for the discussion of certain topics." Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (internal quotation marks omitted); see also City of Madison, Joint Sch. Dist. No. 8 v. Wis. Emp. Relations Comm'n, 429 U.S. 167, 176 n.8, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) ("Plainly, public bodies may confine their meetings to specified subject matter."). As stated by the Fourth Circuit, a government entity "is justified in limiting its meeting to discussion of specified agenda items and in imposing reasonable restrictions to preserve the civility and decorum necessary to further the forum's purpose of conducting public business." Steinburg v. Chesterfield Cty. Planning Comm'n, 527 F.3d 377, 385 (4th Cir. 2008). However, the power to restrict speech in a limited public forum "is not without limits." Good News Club, 533 U.S. at 106, 121 S.Ct. 2093. In particular, "[t]he restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum." Id. at 106-07, 121 S.Ct. 2093 (internal citations and quotation marks omitted); see also Pleasant Grove City, 555 U.S. at 470, 129 S.Ct. 1125 ("In such a [limited public] forum, a government entity may impose restrictions on speech that are reasonable and viewpoint neutral."). The Court considers below whether each of the requirements have been met in the instant matter.
i. Viewpoint Neutral Restriction
In his Amended Complaint, Plaintiff alleged that the speech restrictions "were not viewpoint-neutral in design or as enforced." Am. Compl. ¶ 54. Standing alone, such "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). Moreover, the additional facts as pled by Plaintiff do not support such a conclusion, as discussed in the sections below.
a. Viewpoint Neutral as Designed
The Supreme Court has held that viewpoint discrimination is "an egregious form of content discrimination." Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ; see also Sons of Confederate Veterans, Inc. ex rel. Griffin v. Comm'r of Va. Dep't of Motor Vehicles, 288 F.3d 610, 623 (4th Cir. 2002) ("Viewpoint discrimination is a kind of content discrimination, but is not always easily distinguishable."). Viewpoint discrimination is defined as "discrimination in which the government targets not subject matter, but particular views taken by speakers on a subject." Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. "Viewpoint discrimination is apparent, for example, if a government official's decision to take a challenged action was impermissibly motivated by a desire to suppress a particular point of view." Davison v. Randall, 912 F.3d 666, 687 (4th Cir. 2019), as amended (Jan. 9, 2019) (internal quotation marks omitted).
Furthermore, ensuring "viewpoint neutrality requires not just that a government refrain from explicit viewpoint discrimination, but also that it provide adequate safeguards to protect against the improper exclusion of viewpoints." Child Evangelism Fellowship of MD, Inc. v. Montgomery Cty. Pub. Sch., 457 F.3d 376, 384 (4th Cir. 2006). Plaintiff has not argued that there was a failure to provide such safeguards, and the Court sees no factual allegations that would support such an argument.
In regard to the design of the speech restrictions at issue, none of the statements attributed to the Board or the Commission in the Amended Complaint are facially biased against the views of either the supporters or the opponents of the Rezoning Request and the Oyster Floats Proposal. Instead, the statements attributed to the Board and Commission indicate an intention to prohibit any discussion at the Public Hearing of oysters or the Oyster Floats Proposal, regardless of speaker's views on the Rezoning Request or the Oyster Floats Proposal, for the purpose of limiting the topics discussed at the Public Hearing to "land use and land use only." See, e.g., Am. Compl. ¶ 47 ("We're going to reiterate it over and over again. If you bring up oysters that's not our ball of wax. Save it for VMRC. This is land use and land use only. That's what you need to keep your comments to. So keep that in mind that we are here for land use."). The Fourth Circuit has expressly endorsed the appropriateness of the government imposing such restrictions in limited public forums, that is, reserving its forum "for the discussion of certain topics" and "limiting its meeting to discussion of specified agenda items." Steinburg, 527 F.3d at 385 (internal quotation marks omitted). Plaintiff's factual allegations are insufficient to support a conclusion that the speech restrictions targeted "particular views taken by speakers on a subject," rather than merely "confining [the] forum to the limited and legitimate purposes for which it was created." Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. In fact, Plaintiff's factual allegations demonstrate that, facially, the speech restrictions made no distinction as to the viewpoint of the speakers and advanced no position regarding the Rezoning Request or the Oyster Floats Proposal. The Court thus finds that the speech restrictions, as designed, were viewpoint neutral.
b. Viewpoint Neutral as Enforced
The finding that the speech restrictions were viewpoint neutral as designed "does not preclude a challenge premised on misuse of the policy to chill or silence speech in a given circumstance." Steinburg, 527 F.3d at 387 ; see also Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510 ("Once it has opened a limited forum ... the [government] must respect the lawful boundaries it has itself set."). Plaintiff alleged that the speech restrictions were not viewpoint neutral "as enforced," Am. Compl. ¶ 54, because "[t]hose speaking in favor of the [Rezoning Request] and [Oyster Floats Proposal] were allowed to draw connections between the two in a way that those speaking against the request and proposal were not," id. ¶ 56. However, the facts alleged by Plaintiff are insufficient to support such a conclusion.
Based on the Plaintiff's own pleadings, both proponents and opponents of the Rezoning Request and Oyster Floats Proposal made reference to the Oyster Floats Proposal during the Public Hearing. For example, the County planning and zoning department representative stated that the request at issue was "to have this parcel rezoned from R-2 to B-1 for the storage of his oyster float cages," id. ¶ 40, and the Entrepreneur stated that "[i]t takes a lot of gear to operate an oyster aquaculture business, and, quite simply, we don't have a place to store that gear," id. ¶ 41, whereas members of the public speaking in opposition to the Rezoning Request stated that "[t]he purpose of the request for this rezoning is to store floats, 712 of them, to destroy five and a half acres of public waterway in one of the busiest and most beautiful bodies of water there is," id. ¶ 58, and "I won't mention the name oyster because you don't want to hear that, but even on land it's still an industrial project, and it will cause, it's bound to cause problems," id. ¶ 51. Plaintiff alleged that "members of the public" referred to the Oyster Floats Proposal "on various occasions" while speaking to the Board and Commission, further indicating that multiple individuals made reference to the Oyster Floats Proposal when speaking against the Rezoning Request. Id. ¶ 48. It is apparent from these facts, as pled by Plaintiff, that individuals, regardless of their viewpoint on the issues being discussed, referenced oysters and the Oyster Floats Proposal in the context of their discussion of the Rezoning Request.
Moreover, there is no allegation that any person was denied an opportunity to speak because of their viewpoint or was individually instructed to avoid certain topics or statements. All of the statements attributed to the Board and the Commission that make up the alleged speech restrictions were directed to all participants in the Public Hearing, rather than to speakers of a particular viewpoint. In fact, Plaintiff alleged that "[e]ighteen members of the public spoke ... during the Public Hearing" and that all eighteen spoke in opposition to the Rezoning Request. Id. ¶ 44. The fact that numerous members of the public were permitted to speak against the Rezoning Request strongly indicates that the Board and Commission did not engage in viewpoint discrimination, particularly if, as Plaintiff alleged, the chair of the Board knew at the beginning of the Public Hearing which members of the public planned to speak and that all of them wished to speak against the Rezoning Request. Id. ¶ 37.
The Court finds illustrative the decision in McClure v. City of Hurricane, in which a Southern District of West Virginia court dismissed a First Amendment claim brought by plaintiffs who were not permitted to add a topic to the agenda of a city council meeting due to ongoing litigation between the plaintiffs and the city council. No. CIV.A. 3:10-0701, 2011 WL 1485599, at *8 (S.D.W. Va. Apr. 19, 2011). Here, as in McClure, Plaintiff and other members of the public were not excluded from the Public Hearing nor denied the opportunity to speak against the Rezoning Request; rather, they were instructed not to speak on a certain additional topic that was deemed outside of the purview of the Public Hearing for reasons unrelated to their viewpoints.
The only alleged disparate treatment of members of the public speaking against the Rezoning Request was the allegation that one "member of the Commission visibly demonstrated her disapproval by behavior such as shaking her head" when members of the public referred to the Oyster Floats Proposal. Am. Compl. ¶ 48. Standing alone, such factual allegation is insufficient to "raise [Plaintiff's] right to relief above the speculative level," Twombly, 550 U.S. at 555, 127 S.Ct. 1955, as without more, such allegation cannot reasonably support a finding that the speech restrictions at issue– which were facially neutral in design–were misused in a manner biased against a particular viewpoint. See Gardner v. Pee Dee Reg'l Transp. Auth., No. 4:04cv1948-TLW, 2006 WL 8445557, at *8 (D.S.C. Mar. 16, 2006), aff'd sub nom. McCray v. Pee Dee Reg'l Transp. Auth., 263 F. App'x 301 (4th Cir. 2008) ("[C]ourts have also recognized that public bodies conduct public meetings pursuant to defined rules and agendas, and have afforded public entities deference in enforcing valid viewpoint neutral rules.") (emphasis added).
Accordingly, the Court finds that the facts alleged by Plaintiff do not support a finding that the Board or Commission engaged in viewpoint discrimination in the application of the speech restrictions.
ii. Reasonable Restriction
In the context of evaluating a restriction on speech in a limited public forum, the reasonableness of the restriction must be considered "in light of the purpose served by the forum." Good News Club, 533 U.S. at 106-07, 121 S.Ct. 2093. The parties appear to agree that, in the instant matter, the limited public forum (the Public Hearing) was formed for the express purpose of considering the Rezoning Request (the rezoning of an inland parcel of land from a residential R-2 zone to a business B-1 zone) and not the Oyster Floats Proposal (the installing of oyster floats in the waters of Milford Haven). See Am. Compl. ¶¶ 27, 31; Def.'s Memo at 8.
Plaintiff argues that because the Oyster Floats Proposal was relevant to the Rezoning Request, the "members of the public were entitled to address the [Oyster] Floats Proposal in their comments at the Public Hearing." ECF No. 15 at 11. However, such argument misstates the legal standard, which requires only that the restrictions imposed on speech in a limited public forum be viewpoint neutral and reasonable in light of the forum's purpose. Good News Club, 533 U.S. at 106-07, 121 S.Ct. 2093. Thus, the question before the Court is not whether the Oyster Floats Proposal and Rezoning Request were related, but rather whether the speech restrictions were reasonable. "Courts have consistently held that public bodies ... may specify the subject matters open for discussion at a particular meeting." Adams v. City of Wellsburg, No. CIV.A. 5:07cv30, 2008 WL 803121, at *3 (N.D.W. Va. Mar. 24, 2008) (collecting cases); see also Good News Club, 533 U.S. at 106, 121 S.Ct. 2093 ("The State may be justified in reserving [its forum] for certain groups or for the discussion of certain topics.") (internal quotation marks omitted); Goulart v. Meadows, 345 F.3d 239, 259 (4th Cir. 2003) ("[T]he government may limit a designated or limited public forum to certain purposes, and exclude topics of speech or classes of speakers that are inconsistent with that purpose."). In the instant matter, the Board only had the authority to grant or deny the Rezoning Request; the VMRC, a separate government entity not involved in the Public Hearing, would determine whether to grant the Oyster Floats Proposal. See Am. Compl. ¶¶ 29, 60. As such, the restriction of the topics to be discussed at the Public Hearing before the Board to exclude the Oyster Floats Proposal, which was outside the purview of the Board, was eminently reasonable. See Collinson v. Gott, 895 F.2d 994, 1000 (4th Cir. 1990) ("Thus, while a ruling, ‘We will not listen to your views on capital punishment at this public hearing on rezoning,’ certainly must be constitutionally permissible, a ruling, ‘We will not listen to yours or any views favoring rezoning at this rezoning hearing," obviously would not be.’ "). Plaintiff's argument regarding the relevance of the Oyster Floats Proposal to the Rezoning Request is "a hook upon which Plaintiff attempt[s] to hang his frustration that" the Board might approve a land rezoning request that benefited the separate Oyster Floats Proposal that was before a different government body, and therefore such argument fails to demonstrate that it was unreasonable for the Board to limit discussion at the Public Hearing to only those issues that the Board had the authority to resolve. See Davison v. Plowman, 247 F. Supp. 3d 767, 777 (E.D. Va. 2017), aff'd, 715 F. App'x 298 (4th Cir. 2018) ("While Plaintiff's comment does reference special prosecutors, that aspect of the comment is mere window dressing .... [and] a hook upon which Plaintiff attempted to hang his frustration that Defendant refused to pursue Plaintiff's claims of perjury .... Plaintiff's comment therefore fell outside the bounds of the limited public forum.").
The Court notes that it is apparent from Plaintiff's pleadings that members of the public, including Plaintiff, did have an opportunity in a different forum to orally address the VMRC regarding the Oyster Floats Proposal, though Plaintiff claims that the opportunity was an insufficient alternative to addressing such issue before the Board. See Am. Compl. ¶ 66.
A limited public forum, by its very definition, may be "dedicated solely to the discussion of certain subjects." Pleasant Grove City, 555 U.S. at 470, 129 S.Ct. 1125. A limitation on the subjects to be discussed at a limited public forum to only those subjects that fall under the purview of the government entity overseeing said forum is a plainly reasonable restriction. Therefore, in the instant matter, even when all facts are construed in favor of Plaintiff, the inescapable conclusion is that the speech restrictions were reasonable given that the clear purpose of the Public Hearing was to address the Rezoning Request and not the Oyster Floats Proposal.
Accordingly, Defendant's Motion to Dismiss is GRANTED as to Plaintiff's First Amendment claim, and Plaintiff's First Amendment claim is DISMISSED with prejudice.
2. Sufficient "Chilling" Behavior
Defendant further argues that Plaintiff's Amended Complaint should be dismissed pursuant to Rule 12(b)(6) because the Board did not engage in behavior that was adequately "chilling" to constitute a violation of the First Amendment. Def.'s Memo at 12. However, given the Court's above finding that the speech restrictions were made in a limited public forum, were viewpoint neutral and reasonable, and the subsequent dismissal of Plaintiff's First Amendment claim, the Court declines to consider at this time the merits of Defendant's argument as to whether the Board engaged in behavior that was adequately "chilling" to constitute a violation of the First Amendment.
C. Virginia Code § 15.2-2204(A) Claim
According to 28 U.S.C. § 1367(a), if a federal district court has original jurisdiction over a claim in any civil action, it may exercise jurisdiction over state-law claims. The Court's jurisdiction under § 1367(a) extends only to those claims "that are so related to claims in the action within [the court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). Moreover, supplemental jurisdiction is a discretionary doctrine and "need not be exercised in every case in which it is found to exist." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). According to 28 U.S.C. § 1367(c), "[t]he district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if ... the district court has dismissed all claims over which it has original jurisdiction." In fact, the Supreme Court has stated that if the claims over which a district court has original jurisdiction are dismissed before trial, "the state claims should be dismissed as well." Gibbs, 383 U.S. at 726, 86 S.Ct. 1130 ; see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine–judicial economy, convenience, fairness, and comity–will point toward declining to exercise jurisdiction over the remaining state-law claims."). Such dismissal is appropriate because district courts should avoid "[n]eedless decisions of state law ... both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law." Gibbs, 383 U.S. at 726, 86 S.Ct. 1130.
Because the Court has dismissed Plaintiff's First Amendment claim–the only claim within this Court's original jurisdiction–and pursuant to the Supreme Court's guidance in Gibbs and Carnegie-Mellon Univ., the Court declines to address Plaintiff's state law claim. Therefore, Defendant's Motion to Dismiss is GRANTED as to Plaintiff's Virginia Code § 15.2-2204(A) claim, and Plaintiff's Virginia Code § 15.2-2204(A) claim is DISMISSED without prejudice.
IV. CONCLUSION
For the reasons set forth above, Defendant's Motion to Dismiss is GRANTED and this case shall be DISMISSED . Plaintiff's First Amendment claim is DISMISSED with prejudice . Plaintiff's Virginia Code § 15.2-2204(A) claim is DISMISSED without prejudice. The Clerk is DIRECTED to send a copy of this Opinion and Order to all counsel of record.
The Court, having accepted the detailed factual allegations as pled by Plaintiff, having subsequently ruled on the merits of Plaintiff's First Amendment claim, and there being no additional, discoverable facts suggested in Plaintiff's filings nor a request from Plaintiff for leave to amend, dismisses the First Amendment claim with prejudice. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) ("The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the merits.") (internal quotation marks omitted); Carter v. Norfolk Community Hosp. Assoc., 761 F.2d 970, 974 (4th Cir. 1985) ("A district court's dismissal under Rule 12(b) (6) is, of course, with prejudice unless it specifically orders dismissal without prejudice. That determination is within the district court's discretion.").
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