Donnagelo v. Myers ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NICHOLAS C. DONNANGELO,
Plaintiff-Appellant,
v.
DALE POLEN MYERS, in her official
No. 98-1730
capacity as Chairperson of the
Board of Supervisors of Loudoun
County, Virginia and Individually,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-98-329-A)
Argued: March 1, 1999
Decided: August 2, 1999
Before ERVIN, MICHAEL, and MOTZ,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in
which Judge Michael and Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Hunt Roberts, THOMAS H. ROBERTS &
ASSOCIATES, P.C., Richmond, Virginia, for Appellant. Roderick
Benedict Williams, HOPKINS & SUTTER, Washington, D.C., for
Appellee. ON BRIEF: Mary Catherine Bauer, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond,
Virginia, for Appellant. David T. Ralston, HOPKINS & SUTTER,
Washington, D.C.; John R. Roberts, County Attorney, Leesburg, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
Nicholas C. Donnangelo ("Donnangelo") filed this § 1983 action
against Dale Polen Myers ("Myers"), Chairperson of the Board of
Supervisors of Loudoun County, Virginia ("the Board"), alleging that
Myers' conduct following Donnangelo's remarks to the Board vio-
lated his First Amendment rights. Myers filed a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6) contending that Donnangelo's
rights were not infringed because she never prevented him from
speaking before the Board and, that even if she had, her conduct was
protected by absolute immunity.
The district court granted Myers' motion to dismiss on grounds that
she was acting in furtherance of her duties as Chairperson of the
Board so her conduct amounted to a legislative act protected by abso-
lute immunity. We find that, because Donnangelo was never pre-
vented from speaking before the Board, he has yet to sustain a
redressable injury and his appeal is not yet ripe. Albeit on different
grounds, we affirm the dismissal.
I.
On March 4, 1998, the Board held an open meeting during which
there was a public comment session. Public comment sessions are
governed by the Board's Rules of Order for Public Comments and
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Public Hearings ("Rules of Order").* As required by the Rules of
Order, Donnangelo reserved time to speak prior to the meeting. He
indicated that he planned to address issues relating to the Loudoun
County ("the County") budget then under review by the Board.
At his appointed time, Donnangelo addressed the Board voicing his
objections to the rising budget and increased taxes within the County.
To punctuate his comments, Donnangelo held up campaign literature
used by Board members in previous campaigns to remind members
that the public elected them because they promised to limit the Coun-
ty's budget and not to raise taxes.
Immediately after Donnangelo finished his remarks, Myers
responded to Donnangelo's presentation by saying:
Before I call the next speaker, and before Mr. Donnangelo
leaves, as he usually does as soon as he gets through with
his statement, I would like to make two statements on behalf
of the corporate Board, showing maybe a little bit of leader-
ship that he feels I don't demonstrate at times. You've made
your statements on several different occasions now about
the credit rating of this Board and of this County. And I
know that you have received a letter that tells you that the
statements you have made are simply not true. You are not
going to respond, Mr. Donnangelo. This is a comment. So
you can sit back down.
***
Tonight we have given you quite a bit of leniency. From
now on when you come in, and it's to personally attack
Board members, it will not happen again ... (Donnangelo
left the building)... If you have a corporate statement to
make about issues or the Board of Supervisors, we'll be
_________________________________________________________________
*Among other things, the Rules of Order set time limits for speakers
and require that decorum be maintained. Specifically, the Rules provide
that "[a]ll comments will be directed to the Board of Supervisors as a
body," and "[s]tatements which are demeaning or inappropriate shall be
ruled out of order."
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happy to take your input, but if it is simply, once again,
attacks on Board members, from this point on, this is not the
forum to do that. As the chair of the Board, I will rule you
out of order, and it will not go on.
Tr. of Video Tape, Donnangelo's Ex. #2 at 27-28.
Based on these remarks, Donnangelo filed the instant action alleg-
ing that Myers' conduct violated his right to free speech and to peti-
tion the government for a redress of his grievances as protected by the
First Amendment. He also insisted that Myers' comments violated his
due process rights under the Fourteenth Amendment, and his free
speech rights under the Virginia Constitution. Donnangelo sought
declaratory and injunctive relief along with compensatory and puni-
tive damages.
After issuing an answer, Myers filed a Rule 12(b)(6) motion to dis-
miss on two grounds. First, she insisted that Donnangelo's claim
failed to present a case or controversy because he suffered no injury.
Myers argued that Donnangelo had been given every opportunity to
speak before the Board on the night in question and thereafter had
never attempted to address the Board, much less been prevented from
doing so. In the alternative, Myers contended that if a justiciable con-
troversy was found, she was protected by either absolute or qualified
immunity.
The district court granted Myers' motion to dismiss reasoning that
she was performing a legislative act when she made her remarks to
Donnangelo and was therefore shielded from civil liability by abso-
lute immunity. Donnangelo appealed the dismissal.
II.
On appeal, Donnangelo argued that Myers' comments amounted to
a prior restraint in violation of the First Amendment. His argument
rested predominantly on the notion that Myers' statement -- "[f]rom
now on, when you come in, and it is to personally attack Board mem-
bers, it will not happen again . . . . As the chair of the Board, I will
rule you out of order, and it will not go on."-- impermissibly chilled
his speech.
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Myers argued that her comments amounted to nothing more than
a reminder to Donnangelo of the Board's Rules of Order requiring
that all comments be directed to the Board as a collective body and
that decorum be maintained. Because she never prevented him from
speaking on the night in question, or at any time in the future, Myers
insisted that Donnangelo had suffered no injury. Without such an
injury, Myers contended, Donnangelo's claim did not present a case
or controversy ripe for this Court's adjudication. We agree.
Whether a case is ripe for review bears on a court's subject matter
jurisdiction under the Case or Controversy Clause of Article III. See
New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1498-
99 (10th Cir. 1995). The burden falls on the complainant to allege
facts sufficient to demonstrate the appropriateness of a judicial resolu-
tion. See Renne v. Geary, 501 U.S. 312, 316 (1991). "Ripeness is a
question of law, which we review de novo." Gonzales, 64 F.3d at
1499.
III.
Justiciability requirements mandate that we refuse to consider cases
that are not yet ripe for adjudication. See Renne, 501 U.S. at 320-21.
"[R]ipeness is peculiarly a question of timing," Regional Rail Reorga-
nization Act Cases, 419 U.S. 102, 140 (1974), intended to deter courts
from issuing advisory opinions in abstract disagreements. See gener-
ally Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). In other
words, the doctrine of ripeness is intended to prevent judicial consid-
eration of disputes until the controversy is presented in "clean-cut and
concrete form." Renne, 501 U.S. at 322 (citations omitted).
When making a ripeness determination we utilize a two-factor test
asking whether (1) the issue is fit for judicial review and (2) if hard-
ship will befall the parties by withholding judicial review. See Arch
Mineral Corp. v. Babbitt, 104 F.3d 660, 665 (4th Cir. 1997). Because
of the unique chilling effect of unconstitutional restrictions on free
speech, however, the ripeness analysis is often relaxed in First
Amendment cases. See Gonzales, 64 F.3d at 1500 ("The primary rea-
sons for relaxing the ripeness analysis in this context is the chilling
effect that potentially unconstitutional burdens on free speech may
occasion.").
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In the First Amendment context, therefore, we must limit our deci-
sions to cases that demonstrate live disputes involving actual or
threatened government action to bar speech, keeping in mind the dis-
tinct characteristics of a free speech claim. See generally, Renne, 501
U.S. at 320-322. Previously, we have held that, without a factual
record of an actual or threatened state action resulting in the suppres-
sion of speech, no ripe, justiciable controversy exists. See Woodall v.
Reno, 47 F.3d 656, 658 (4th Cir. 1995). See also Jordahl v. Demo-
cratic Party of Virginia, 122 F.3d 192, 198 (4th Cir. 1997) (holding
that unless the complainant presents evidence that he is currently fac-
ing actual or threatened adverse effects, the action is not a live contro-
versy).
A.
First, we determine whether Donnangelo's claim is fit for judicial
consideration. Although most cases in which courts have examined
whether an issue is fit for judicial review involve agency actions, the
concept behind the ripeness doctrine -- avoiding premature adjudica-
tion of abstract disputes -- applies equally in the instant case in which
the dispute is not ripe because the injury alleged has yet to occur and
may never materialize.
Donnangelo has failed to demonstrate that he was injured in any
way by Myers' comments. First, under no set of facts presented in his
complaint can Donnangelo show that he was denied his right to free
speech. There is no evidence that Donnangelo was prevented from
speaking on the night in question. It is undisputed that Myers waited
to speak until Donnangelo was completely finished with his remarks
and had taken his seat. Nor is there any evidence that Donnangelo
was prohibited from speaking to the Board at any future time. With-
out more, Donnangelo has not suffered an injury that this Court can
redress.
Notably, nowhere in his complaint does Donnangelo allege that he
has been prohibited from speaking as of yet. He merely contends that
he has suffered a prospective injury, namely that, as a result of Myers'
threats, he has not appeared before the Board again for fear of repri-
sal. This argument is equally unavailing. As stated by the Supreme
Court in Renne, the mere allegation that an action was not repeated
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for fear of future adverse action is insufficient to create a ripe contro-
versy. 501 U.S. at 321 (holding that the plaintiff's contention that it
had not repeated the contested action for fear of prosecution was
insufficient to provide a ripe, justiciable controversy). Donnangelo
has not alleged that he has attempted to speak before the Board again
and been prevented from doing so. Nor does he allege that he intends
to speak before the Board at any time in the future. Donnangelo
merely alleges that Myers' remarks have already chilled his speech.
Under no reading of his complaint can we find evidence that a
redressable injury actually occurred.
Myers' comments amounted to nothing more than a reminder and
a warning to Donnangelo that citizens who speak before the Board are
subject to the Rules of Order and failure to follow them warrants the
loss of that right. Even when all of the allegations in his complaint
are taken as true and viewed in the light most favorable to him, Don-
nangelo fails to demonstrate that he has sustained an injury sufficient
to constitute a ripe dispute fit for our consideration.
B.
Perhaps more importantly, deferring consideration of this appeal
will not further impinge upon Donnangelo. In assessing the hardship
to the parties, we must determine whether postponing review will
cause harm to the petitioner that is "immediate, direct, and signifi-
cant." West Virginia Highlands Conservancy, Inc. v. Babbitt, 161
F.3d 797, 801 (4th Cir. 1998) (citations omitted). Our decision to dis-
miss his appeal does not cause Donnangelo any foreseeable harm.
Such a resolution in no way prevents Donnangelo from appearing
before the Board in the future to express his views subject to the
Rules of Order. If at that time, he is prohibited from expressing his
views, Donnangelo can pursue his First Amendment claim in court.
Until he can show that he actually suffered an injury, however, Don-
nangelo's claim will remain an abstract disagreement over which we
do not have jurisdiction.
IV.
For the foregoing reasons, we hold that Donnangelo's appeal fails
to present a live controversy ripe for adjudication. Accordingly, we
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believe consideration of this issue should be deferred until and unless
a more concrete dispute arises. The decision of the district court is
therefore
AFFIRMED.
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