King et al v. Jindal et al
ORDER & REASONS granting in part and denying in part 3 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Martin L.C. Feldman on 10/16/2013. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAURA AND TERRY KING
STATE OF LOUISIANA, EX REL.
BOBBY JINDAL, GOVERNOR OF
LOUISIANA, AND JAMES D. CALDWELL,
LOUISIANA ATTORNEY GENERAL
ORDER AND REASONS
Before the Court is defendants' motion to dismiss under
Federal Rule of Civil Procedure 12(b)(1).
For the reasons that
follow, the motion is GRANTED in part, and DENIED in part.
This is a free speech case brought by Dr. Laura King and her
The Kings assert the following allegations in
Dr. Laura King formerly worked for the St. Tammany Parish
Coroner's Office, as the manager of its forensic laboratory.
However, after she raised concerns to her superiors regarding
After her termination, Dr. King, along with her husband,
Terry, continued to pursue her concerns by making complaints to
various state and federal agencies with jurisdiction over the
activities of the Coroner's Office, including the Louisiana State
Board of Ethics.
The media began covering the Kings' allegations,
including their complaints to the Louisiana Board of Ethics.
In September 2011, the Kings were charged by misdemeanor bill
of information with violating La. R.S. 42:1141,1 which makes it a
crime to breach the confidentiality of ethics complaints by making
public statements concerning a private investigation or hearing of
the Louisiana Board of Ethics.
The charges were brought after the
Coroner's Office complained to the District Attorney for St.
Tammany Parish, who recused himself and referred the charges to
Louisiana Attorney General Buddy Caldwell, who then specially
appointed the St. Charles Parish District Attorney's Office to
pursue the charges.
In June 2012, the charges against the Kings
were nolle prossed.
In June 2013, the Kings filed suit in this Court against
Louisiana Governor Bobby Jindal and Louisiana Attorney General
Buddy Caldwell, in their official capacities, alleging that La.
R.S. 42:1141.4(L)(1) violates their rights to free speech under the
First and Fourteenth Amendments to the United States Constitution,
and Article I, Sections 7 and 9 of the Louisiana Constitution.
Plaintiffs seek relief in the form of a declaration that the
statute is unenforceable, an injunction preventing the statute's
enforcement, and costs and fees associated with bringing this
action. Defendants now move to dismiss plaintiffs' complaint under
Specifically, plaintiffs were charged under La. R.S.
42:1141(E)(12)(a), which has since been amended and is now
engrossed at La. R.S. 42:1141.4(L)(1).
Federal Rule of Civil Procedure 12(b)(1).
Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the Court’s subject
Fed. R. Civ. P. 12(b)(1).
challenge this Court’s subject matter jurisdiction, invoking the
doctrine of sovereign immunity.
The burden of proof for a Rule
12(b)(1) motion to dismiss is on the party asserting jurisdiction.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
The Eleventh Amendment bars suits by private citizens against
a state in federal court.
K.P. v. LeBlanc, 627 F.3d 115, 124 (5th
Cir. 2010)(citing Hutto v. Finney, 437 U.S. 678, 700 (1978)). This
There is, of course, a narrow exception to this
immunity from suit: the Ex parte Young exception “is based on the
unconstitutional law, he is stripped of his official clothing and
becomes a private person subject to suit.”
See id. (citing Ex
parte Young, 209 U.S. 123 (1908)); see also Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 n.10 (1989)(noting “[o]f course a
state official in his or her official capacity, when sued for
‘official-capacity actions for prospective relief are not treated
as actions against the State’”).
The Ex parte Young exception applies when the plaintiff
demonstrates that the state officer has “some connection” with the
enforcement of the disputed act.
K.P., 627 F.3d at 124 (citing Ex
parte Young, 209 U.S. at 160, and noting that the purpose of the
connection requirement is to prevent litigants from misusing the
As the Fifth Circuit U.S. Court of Appeals has
Ex parte Young gives some guidance about the required
“connection” between a state actor and an allegedly
unconstitutional act. “The fact that the state officer,
by virtue of his office, has some connection with the
enforcement of the act, is the important and material
fact, and whether it arises out of the general law, or is
specially created by the act itself, is not material so
long as it exists.”
Id. (quoting Ex parte Young, 209 U.S. at 157).
Ex parte Young also
requires that the plaintiff seek prospective relief only, and not
Verizon Md. Inc. v. Pub. Serv. Comm'n of Md., 535
U.S. 635, 645 (2002).
To determine whether this requirement is
satisfied, "a court need only conduct a straightforward inquiry
into whether [the] complaint alleges an ongoing violation of
omitted)(alteration in original).
Defendants insist they lack the requisite connection with the
enforcement of the challenged act that is necessary to establish
Invoking Okpalobi v. Foster, 244 F.3d 405, 411 (5th Cir.
2001),2 defendants contend that plaintiffs must allege defendants
have both a particular duty to enforce the statute in question and
a demonstrated willingness to exercise that duty.
To the extent
defendants seek to limit the scope of the Ex parte Young exception
based on the Fifth Circuit’s analysis in Okpalobi, it is undisputed
that the Fifth Circuit’s discussion of sovereign immunity in
Okpalobi was in a plurality opinion.
As the Fifth Circuit has
pointed out, “[b]ecause that part of the en banc opinion did not
garner majority support, the Eleventh Amendment analysis is not
binding precedent.” K.P., 627 F.3d at 124 (citing United States v.
Ferguson, 211 F.3d 878, 885 (5th Cir. 2000)).
Nevertheless, the Court finds that plaintiffs fall short of
satisfying the “some connection” requirement of Ex parte Young, at
least with respect to Governor Jindal.
Governor Jindal’s generic
constitutional duty to “see that the laws are faithfully executed”
(La. Const. art. IV, § 5(A)) lacks the Ex parte Young nexus between
the Governor and the alleged unconstitutional act necessary to
defeat sovereign immunity.
However, the Court finds that plaintiffs have satisfied the
In Okpalobi, the Fifth Circuit held that to determine
whether the Ex parte Young exception applies, the Court “should
gauge (1) the ability of the official to enforce the statute at
issue under his statutory or constitutional powers, and (2) the
demonstrated willingness of the official to enforce the statute.”
244 F.3d at 417.
"some connection" requirement with respect to Attorney General
Plaintiffs have demonstrated both Attorney General
Caldwell's power and his willingness to enforce the statute in
question, by alleging that he specially appointed the St. Charles
Parish District Attorney's Office to prosecute plaintiffs under the
See Okpalobi, 244 F.3d at 417.
Caldwell's involvement in
connection" with the enforcement of the disputed act. See Ex parte
Young, 209 U.S. at 157.
prosecution was a one-time event, and therefore that the alleged
constitutional violation is not "ongoing" as required by Ex parte
specifically allege in their complaint that their right to free
speech is "restrained in light of the possibility of further
specifically request injunctive and declaratory relief only, not
Accordingly, defendants' motion is GRANTED with respect to the
claims against Governor Jindal, and DENIED with respect to the
claims against Attorney General Caldwell.
New Orleans, Louisiana, October 16, 2013
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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