Lambeth v. Board of Com'Rs of Davidson County, Nc

321 F.Supp.2d 688

Charles F. LAMBETH, Jr. and Michael D. Lea, Plaintiffs, v. THE BOARD OF COMMISSIONERS OF DAVIDSON COUNTY, NORTH CAROLINA, Defendant.

No. 1:03 CV 00592.

United States District Court, M.D. North Carolina.

May 25, 2004.

George S. Daly, Jr., John W. Gresham, Ferguson Stein Wallas Adkins Gresham & Sumter, P.A., Charlotte, NC, for Plaintiffs.

James Redfern Morgan, Jr., Womble Carlyle Sandridge & Rice, Winston-Salem, NC, Stephen C. Holton, Holton & Holton, Lexington, NC, for Defendant.

Roger Neal Wiles, Lexington, NC, for Amicus.

MEMORANDUM OPINION

OSTEEN, District Judge.

Plaintiffs Charles F. Lambeth, Jr. and Michael D. Lea bring this action against Defendant The Board of Commissioners of Davidson County ("the Board") pursuant to 42 U.S.C. § 1983 claiming a violation of the Establishment Clause of the First Amendment to the United States Constitution. This matter is now before the court on Plaintiffs' Motion for Leave to File and Serve Second Amended Complaint and the Board's Motion to Dismiss Plaintiffs' First Amended Complaint for failure to state a claim upon which relief may be granted.

I. BACKGROUND

Plaintiffs, two attorneys who live and practice law in Davidson County, North Carolina, filed this action claiming that the inscription "In God We Trust" appearing on the Davidson County Governmental Center violates the Establishment Clause. The Board, having approved the installation of the display, refutes Plaintiffs' claim and moved to dismiss. Plaintiffs filed a First Amended Complaint, thereby superceding their original complaint. The Board subsequently moved to dismiss the First Amended Complaint relying entirely upon and incorporating by reference the arguments presented in its original motion to dismiss.

Several past members of the Board who held office at the time the display was approved filed an amicus curiae brief in support of the Board. In that brief, Amici argued that Plaintiffs lack standing to bring this constitutional challenge. In response, Plaintiffs moved to amend their complaint a second time. The Board and Amici both opposed that motion on the ground that such an amendment would be futile.

Currently before the court are Plaintiffs' motion to amend their First Amended Complaint and the Board's motion to dismiss Plaintiffs' First Amended Complaint.

II. ANALYSIS

A. Plaintiffs' Motion for Leave to File and Serve a Second Amended Complaint

Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its pleadings "once as a matter of course" and again "only by leave of court ... and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see Deasy v. Hill, 833 F.2d 38, 40 (4th Cir.1987). Since Plaintiffs have already filed a First Amended Complaint, they have properly moved for leave to file and serve a Second Amended Complaint.

Plaintiffs' proposed amendments are intended solely to "amplify their allegations as to their standing." (Pls.' Br. Supp. Second Am. Compl. at 2.) Since the amendments do not serve any further purpose, see id. at 7-8, the question for this court is whether Plaintiffs have adequately alleged standing in the First Amended Complaint. If that question can be answered in the affirmative, then Plaintiffs' amendment must be viewed as futile and disallowed. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (stating that "futility of amendment" is sufficient reason to deny leave to amend a complaint).

In the First Amended Complaint, it is alleged that "Plaintiffs are each licensed attorneys who live and practice law in Davidson County, North Carolina. Each has contact with the display in the course of his professional activities in the county. Each is offended by the display, which is to him a religious statement by the County government." (First Am. Compl. ¶ 5.) Whether this allegation is sufficient to confer standing will necessarily depend on the nature of cognizable injuries recognized by Establishment Clause cases. See Suhre v. Haywood County, 131 F.3d 1083, 1085 (4th Cir.1997). "It has been repeatedly noted that `the concept of injury for standing purposes is particularly elusive in Establishment Clause cases.'" Id. (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir.1991)); see also Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir.1987); ACLU of Ill. v. City of St. Charles, 794 F.2d 265, 267-68 (7th Cir.1986); ACLU of Ga. v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098, 1102-03 (11th Cir.1983).

The Supreme Court has noted that neither an individual's strong spiritual convictions nor vehement opposition to perceived state-sponsored religious expression gives rise to an injury-in-fact. See Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 486, 102 S.Ct. 752, 766, 70 L.Ed.2d 700 (1982). As such, Plaintiffs' allegation that they are distressed by the display, taken alone, "is not a permissible substitute for the showing of injury itself." Id. ("[S]tanding is not measured by the intensity of the litigant's interest or the fervor of his advocacy."); Suhre, 131 F.3d at 1086.

Although mere outrage or offense is not sufficient to confer standing, intangible injuries may be justiciable in Establishment Clause cases. Amici note that Plaintiffs have not asserted "any economic loss, discrimination, coercion, or any actual harm to them except their personal offense." (Amicus Curiae Br. Supp. Def. at 4.) It is well-settled, however, that Plaintiffs' standing may be predicated on non-economic injury. See Valley Forge, 454 U.S. at 486, 102 S.Ct. at 766; accord United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686-88, 93 S.Ct. 2405, 2415-16, 37 L.Ed.2d 254 (1973); Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); Smith v. County of Albemarle, 895 F.2d 953, 955 (4th Cir.1990). Allegations of discriminatory or coercive treatment are also not required; plaintiffs may, for example, assert aesthetic harm and establish standing. See, e.g., SCRAP, 412 U.S. at 686, 93 S.Ct. at 2415; Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972).

Furthermore, Plaintiffs need not allege that they changed their conduct to avoid contact with the offensive display. See School Dist. of Abington Township v. Schempp, 374 U.S. 203, 224-25 & n. 9, 83 S.Ct. 1560, 1573 & n. 9, 10 L.Ed.2d 844 (1963) (stating that standing to challenge Bible readings in public school was not "mitigated by the fact that individual students [could] absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause"); accord Suhre, 131 F.3d at 1088 ("In evaluating standing, the Supreme Court has never required that Establishment Clause plaintiffs take affirmative steps to avoid contact with challenged displays or religious exercises."). As such, Plaintiffs' purported injury is not lessened by their failure to allege economic harm, changed behavior, or any other quantifiable adverse impact caused by the display at issue.

The question, then, is whether Plaintiffs can assert a justiciable injury simply by stating their offense at the display in conjunction with their standing in the community. In Valley Forge, the Supreme Court declined to find standing when the respondents "fail[ed] to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees." 454 U.S. at 485, 102 S.Ct. at 765 (emphasis omitted). The Court reasoned that allegations of offense at a claimed Establishment Clause violation would not, absent any personal connection to the state action, give rise to standing. Id. at 486-87, 102 S.Ct. at 766. In this case, Plaintiffs have similarly alleged a primarily psychological injury, claiming that "[e]ach [Plaintiff] is offended by the display, which is to him a religious statement by the County government." (First Am. Compl. ¶ 5.)

Plaintiffs, however, have additionally stated that they are "each licensed attorneys who live and practice law in Davidson County, North Carolina. Each has contact with the display in the course of his professional activities in Davidson County." (Id.) This allegation distinguishes Plaintiffs from the respondents addressed in Valley Forge. In that case, the Court took issue with the respondents' tangential connection to the state action at issue. "Respondents complain[ed] of a transfer of property located in [Pennsylvania]" although they "reside[d] in Maryland and Virginia [and] their organizational headquarters [were] located in Washington, D.C." Valley Forge, 454 U.S. at 486-87, 102 S.Ct. at 766 (noting that the respondents "learned of the transfer through a news release. Their claim that the Government has violated the Establishment Clause does not provide a special license to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court."). Plaintiffs have clearly alleged a much closer connection to the display at issue, stating that they conduct both their personal and professional lives in the county where the display is located and alleging that they come into contact with it on a regular basis.

In Suhre, the Fourth Circuit also distinguished Valley Forge on this ground. In that case, a display of the Ten Commandments appearing in Haywood County's Courthouse was challenged as violative of the Establishment Clause. 131 F.3d at 1085. The plaintiff was a frequent litigant and activist in the community, but had suffered no economic injury nor changed his behavior to avoid the display. Id. He alleged only that he was "filled with revulsion" when viewing the display. Id. Regardless, the Fourth Circuit found that ...