Foundation Against Intolerance & Racism, Inc. v. Pickens

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

FOUNDATION AGAINST

INTOLERANCE & RACISM, INC.,

Plaintiff,

v. CIVIL NO. 1:24-CV-115

(KLEEH)

MARY JANE PICKENS et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

Pending before the Court is a motion to dismiss the amended

complaint. For the reasons discussed herein, the motion is DENIED.

I. INTRODUCTION AND PROCEDURAL HISTORY

The Plaintiff, the Foundation Against Intolerance & Racism

(“FAIR”), brings this action under 42 U.S.C. § 1983 against the

following Defendants: Mary Jane Pickens, as the Executive Director

of the West Virginia State Bar; David Amsbary, as the President of

the West Virginia State Bar Board of Governors; and Robby Aliff,

as the President-Elect of the West Virginia State Bar Board of

Governors (together, “Defendants”).1 Defendants are sued in their

official capacities. FAIR alleges that Defendants have violated

the Fourteenth and Fifteen Amendments to the United States

1 FAIR originally named Shannon Smith and David Amsbary as the

President and President-Elect, but on April 3, 2025, Amsbary was

sworn in as President and Aliff was sworn in as President-Elect.

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Constitution by enforcing State Bar Bylaws that reserve one seat

on the State Bar Board of Governors for an African-American

representative and allow only African Americans to vote in the

election for that Board seat.

On December 19, 2024, FAIR filed the original complaint. On

April 1, 2025, FAIR filed an amended complaint. On April 16, 2025,

Defendants filed a motion to dismiss pursuant to Rules 12(b)(1)

and 12(b)(6) of the Federal Rules of Civil Procedure. The motion

is fully briefed and ripe for review.

II. FACTUAL BACKGROUND

The West Virginia Constitution vests judicial power of the

state solely in the Supreme Court of Appeals of West Virginia

(“State Supreme Court”), circuit courts, intermediate appellate

courts, and magistrate courts, as well as in the justices, judges,

and magistrates of those courts. See W. Va. Const. art. VIII,

§ 1. The West Virginia Code provides that the State Supreme Court

“shall, from time to time, prescribe, adopt, promulgate, and amend

rules,” and it authorizes the State Supreme Court’s creation of

the State Bar as its administrative agency:

Organizing and governing by and through all of

the attorneys at law practicing in this state,

an administrative agency of the Supreme Court

of Appeals of West Virginia, which shall be

known as “The West Virginia State bar.” The

West Virginia State Bar shall be a part of the

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judicial department of the state government

and is hereby created for the purpose of

enforcing such rules as may be prescribed,

adopted and promulgated by the court from time

to time under this section. It is hereby

authorized and empowered to perform the

functions and purposes expressed in a

constitution, bylaws and amendments thereto as

shall be approved by the Supreme Court of

Appeals from time to time. All persons

practicing law in this state shall be members

of the West Virginia State Bar in good

standing: Provided, however, That the West

Virginia State Bar shall not become operative

until its constitution and bylaws shall first

have been submitted to all attorneys at law

practicing in this state, including those

presently serving in the armed forces of the

United States, for the purpose of securing the

suggestions and recommendations of all such

attorneys at law, for a period of at least

sixty days prior to the entry of an order by

such court approving said constitution and

bylaws.

W. Va. Code § 51-1-4a(d).

As set forth in the State Bar Constitution, the State Bar’s

objects are “to protect the interests of the public; to advance

the administration of justice and the science of jurisprudence; to

improve the relations between the public and the bench and the

bar; to uphold and elevate the standards of honor, integrity,

competency and courtesy in the legal profession; and to encourage

cordial relations among its members.” Exh. 2, ECF No. 36-2, at

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art. II.2 Its purpose is “to give effect to pertinent rules of

the Supreme Court of Appeals of West Virginia, to perform the

functions expressed in [the State Bar] constitution and bylaws,

and to perform such other functions as directed by the Supreme

Court of Appeals of West Virginia.” Id.

The State Supreme Court has promulgated Administrative Rules

creating the State Bar and providing for its governance. See Exh.

3, ECF No. 36-3. Rule 1 provides,

Pursuant to the Supreme Court of Appeal’s

[sic] inherent and exclusive authority to

promulgate rules governing and regulating the

practice of law in West Virginia, including

the creation of the West Virginia State Bar in

accordance with that authority and W. Va. Code

§ 51-1-4a, these West Virginia State Bar

Administrative Rules are to be enforced by the

West Virginia State Bar.

Id. at Rule 1. The State Bar Bylaws empower the State Bar to

enforce but not to promulgate Rules:

In accordance with West Virginia Code § 51-1-

4a and the inherent authority of the Supreme

Court of Appeals to regulate the practice of

law under Article VIII of the West Virginia

Constitution, the West Virginia State Bar is

authorized to enforce the West Virginia State

Bar Administrative Rules as adopted by the

Supreme Court of Appeals. The former Rules

and Regulations of the State Bar are

abolished. The State Bar does not have

independent authority to promulgate rules but

2 Defendants’ memorandum in support is the only brief with exhibits

attached, so all exhibit numbers referenced herein refer to the

memorandum’s exhibits.

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does have the authority to publish and amend

policies and procedures for the internal

management of its operations.

Exh. 4, ECF No. 36-4, at Bylaw 10.12(a). The State Bar Bylaws

also provide a mechanism for the State Bar to propose Rule changes

to the State Supreme Court. Id. at Bylaws 10.12(b) and (c). If

the State Bar seeks to alter or amend its Constitution or Bylaws,

the State Supreme Court must authorize any such change or

amendment. See Exh. 2, ECF No. 36-2, at art. VI; see also Exh. 4,

ECF No. 37-4, at Bylaws 11.01-11.02.

Board of Governors

Article 5 of the State Bar Bylaws establishes that the State

Bar is managed and administered by its Board of Governors (the

“Board”). See Exh. 4, ECF No. 36-4, at art. V. Any person seeking

to join the Board must be nominated, either by petition or, if no

petition is filed, by a committee appointed by the State Bar

President. Id. at Bylaw 5.06(a). The Board is comprised of

twenty-six (26) members: four (4) officers (president, president-

elect, vice-president, and immediate past president); one (1)

governor from each of the sixteen (16) geographic State Bar

districts; three (3) additional governors from District Eight; one

(1) African-American lawyer; the Chairperson of the Young Lawyer

Section, and the Dean of the West Virginia University College of

Law (who is a non-voting member of the Board). Id. at Bylaw 5.02.

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Terms for each elected seat are four years, and yearly elections

are staggered in four-year cycles. Id. at Bylaw 5.03.

State Bar Administrative Rule 5, which addresses elections

and referenda, including nominations for governors, provides for

the election of an African-American representative to the Board.

See Exh. 3, ECF No. 36-3, at Rule 5.02. The State Bar Bylaws carry

out this directive, and only those who self-identify as African

American may vote in the election for the African-American seat.

See Exh. 4, ECF No. 36-4, at Bylaw 5.06(b). The Executive Director

receives nomination petitions as part of the elections process.

Id. at Bylaw 5.06(a). In each year in which the election for the

African-American seat is to be held, on or before January 20, the

Executive Director identifies African Americans registered with

the State Bar and notifies them of the nomination process. Id. at

Bylaw 5.06(b); see also Exh. 3, ECF No. 36-3, at Rule 5.02(b). If

the Executive Director does not receive a petition nominating an

African American, the President appoints a committee to nominate

two eligible African-American attorneys for that year’s election.

Exh. 4, ECF No. 36-4, at Bylaw 5.06(b). The last election cycle

for the African-American seat concluded on March 20, 2025. See

Am. Compl., ECF No. 27, at ¶ 25. The next election cycle for the

African-American seat is in 2029. Id. ¶ 27.

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Officers and Executive Director

The State Bar Bylaws establish the roles of the State Bar

officers and Executive Director, as well as their respective

duties. The President is the chief executive officer of the State

Bar and must faithfully endeavor to accomplish a successful

prosecuting of its objects, aims, and purposes, including the

election for the African-American seat on the Board. Exh. 4, ECF

No. 36-4, at Bylaw 6.06. The President shall, among other things,

preside at all meetings of the State Bar; serve as the chair of

the Board and preside at all Board meetings; appoint or recommend

to the Board suitable members to participate in committees; and,

from time to time, recommend to the Board such changes as may seem

advisable in the scope and function of committees and in their

personnel. Id. The President-Elect assists the President in the

execution of those duties and shall perform such duties and have

such authority as may be prescribed from time to time by the Board.

Id. at Bylaw 6.07. The President-Elect presides at all meetings

of the Board and State Bar in the absence of the President; is

responsible for the advancement of public acceptance of the State

Bar program; and supervises and coordinates the activities of all

State Bar sections and committees engaging in the presentation of

any part of such program to the public. Id. The Executive Director

shall, among other things, attend all meetings of the State Bar

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and the Board; report upon the activities of the State Bar during

the past year and make such recommendations as the Executive

Director shall deem proper; make financial and other reports at

Board meetings as the Board may require; attend generally to the

correspondence of the State Bar; and perform such other duties as

are directed by the Board. Id. at Bylaw 6.09.

Specifically, FAIR challenges portions of State Bar Bylaws

5.02, 5.06, and 5.07, which are set forth here in full:

Bylaw 5.02

The Board of Governors shall consist of the

following twenty-five voting members and one

non-voting member:

(a) The president, president-elect, vice

president, and immediate past president;

(b) One governor from each of the sixteen

State Bar districts set forth in Bylaw 5.04;

(c) Three additional governors from State Bar

District Eight;

(d) One African-American lawyer elected as

described in Bylaw 5.06;

(e) The Chairperson of the Young Lawyer

Section; and

(f) The Dean of the West Virginia University

College of Law, as a non-voting member.

Bylaw 5.06

(a) Nomination for the office of governor

shall be by written petition signed by not

less than ten members of the State Bar

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eligible to vote in the district where such

nominee is qualified for office, except that

where there are fewer than ninety eligible

members in the district, the signatures of ten

percent of the members shall be sufficient.

No member shall sign more than one nominating

petition in any year. If in any year the

Executive Director does not receive, within

the time fixed by the Board, from any state

bar district for which a governor is to be

elected in that year, a petition nominating an

eligible person for governor, the President

shall appoint a committee from the Board, and

that committee shall nominate at least two

eligible persons.

(b) In each year in which an African-American

lawyer is to be elected as a governor, the

Executive Director shall identify African-

American lawyers so registered with the State

Bar and send them a notice regarding the

nomination for the position on the Board of

Governors. Nomination for the position shall

be by written petition signed by not less than

ten African-American members of the State Bar

eligible to vote, except that if there are

fewer than ninety eligible African American

lawyers in the state, the signatures of ten

percent of the African-American lawyers shall

be sufficient. No African-American lawyer

shall sign more than one nominating petition

in any year. If in any year the Executive

Director does not receive, within the time

fixed by the Board, a petition nominating an

African-American lawyer for governor, the

President shall appoint a committee from the

Board, and that committee shall nominate at

least two eligible African-American lawyers.

Bylaw 5.07

Each district governor shall be elected by an

electronic vote of the active members having

their principal offices for the practice of

the law in the State Bar district and active

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non-practicing members whose mailing

addresses of record are in that district.

Each governor in the African-American lawyer

position shall be elected by an electronic

vote of the African-American lawyers so

registered who are active members and active

nonpracticing members of the State Bar. Such

elections shall be conducted and canvassed,

and any tie votes determined, in accordance

with State Bar Administrative Rule 5.05.

III. ALLEGATIONS

In the amended complaint, FAIR alleges that Defendants

enforce State Bar Bylaws that unlawfully set aside a seat on the

Board for an African-American attorney and unlawfully permit only

African Americans to vote in the election for the African-American

seat. Am. Compl., ECF No. 27, at ¶ 2. FAIR describes itself as

a “nationwide grassroots organization that fights for equality for

all individuals regardless of racial group membership.” Id. ¶ 4.

It asserts that it has members who are “ready, willing, and able”

to be nominated to the Board and to vote in all Board elections

for which they are eligible. Id. FAIR seeks to “vindicate its

members’ rights to equal protection and end the Board’s state-

sponsored racial discrimination.” Id. ¶ 5. It asserts that “[b]y

implementing and enforcing race-based exclusions for nominations,

elections, and voting, the State Bar and the Board violate FAIR’s

members’ constitutional rights.” Id. Specifically, FAIR brings

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challenges under the Fourteenth and Fifteenth Amendments to the

United States Constitution and 42 U.S.C. § 1983. Id. ¶ 6.

FAIR asserts that “Member A” resides in West Virginia, has a

principal office for the practice of law in West Virginia, is a

member of the West Virginia Bar, and is not African American. Id.

¶ 9. Member A is eligible to be elected to the District 16 seat

on the Board. Id. That seat is next up for election in 2026.

Id. FAIR asserts that Member A “was and will continue to be

disqualified from nomination for and election to the African

American seat solely because of his race,” but he is “otherwise

ready, willing, and able to be nominated for the African American

seat.” Id. FAIR asserts that Member A “was and will continue to

also be disqualified from voting in elections for that seat because

of his race.” Id.

FAIR asserts that “Member B” resides in West Virginia, has a

principal office for the practice of law in West Virginia, is a

member of the West Virginia Bar, and is not African American. Id.

¶ 10. Member B is eligible to be elected to the District 9 seat

on the Board. Id. That seat is next up for election in 2029.

Id. FAIR asserts that Member B “was and will continue to be

disqualified from nomination for and election to the African

American seat solely because of his race,” but he is “otherwise

ready, willing, and able to be nominated for the African American

FAIR V. PICKENS ET AL. 1:24-CVv-115

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seat.” Id. FAIR asserts that Member B “was and will continue to

also be disqualified from voting in elections for that seat because

of his race.” Id.

FAIR has sued Defendants in their official capacities only.

It sues Defendant Pickens, as the Executive Director, stating that

she is “responsible for implementing and enforcing the racial

exclusions in nominations, elections, and voting.” Id. G11. FAIR

sues Defendant Amsbary, as President, stating that he “is

responsible for enforcing the Bylaws implementing and enforcing

racial exclusions in nominations, elections, and voting.” Id.

q 12. FAIR sues Defendant Aliff, as President-Elect, asserting

that he assists the President in the execution of his or her

duties. Id. 47 13, 23.

FAIR brings the following causes of action:

e Count One: Violation of the Equal Protection

Clause of the Fourteenth Amendment to the

United States Constitution (Bylaws 5.02(d),

5.06(b), and 5.07);

e Count Two: Violation of the Citizenship Clause

of the Fourteenth Amendment to the United

States Constitution (Bylaws 5.02(d), 5.06(b),

and 5.07); and

e Count Three: Violation of the Fifteenth

Amendment to the United States Constitution

(Bylaw 5.07).

FAIR requests the following relief:

12

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e A declaration that the racial exclusions in

Bylaws 5.02(d), 5.06(b), and 5.07 violate the

Equal Protection Clause and the Citizenship

Clause of the Fourteenth Amendment to the

United States Constitution;

e A declaration that the race-based abridgement

of the right to vote in Bylaw 5.07 violates

the Fifteenth Amendment to the United States

Constitution;

e A permanent prohibitory injunction forbidding

Defendants and Defendants’ officers, agents,

affiliates, servants, successors, employees,

and all other persons in active concert or

participation with Defendants from enforcing,

or attempting to enforce, the racial

exclusions in Bylaws 5.02(d), 5.06(d), and

5.07; and

e An award of attorney’s fees, costs, and

expenses in this action pursuant to 42 U.S.C.

§ 1988.

Iv. STANDARDS OF REVIEW

Rule 12 (b) (1)

Rule 12(b) (1) of the Federal Rules of Civil Procedure allows

the Court to dismiss an action for lack of jurisdiction over the

subject matter. A plaintiff bears “the burden of proving that

subject matter jurisdiction exists.” Evans v. B.F. Perkins Co.,

166 F.3d 642, 647 (4th Cir. 1999) (citation omitted). In

considering a motion to dismiss pursuant to Rule 12(b) (1), the

court should “regard the pleadings as mere evidence on the issue,

and may consider evidence outside the pleadings without converting

13

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the proceeding to one for summary judgment.” Id. (citation

omitted). The court should grant the motion “only if the material

jurisdictional facts are not in dispute and the moving party is

entitled to prevail as a matter of law.” Id. (citation omitted).

When a defendant asserts multiple defenses, “questions of subject

matter jurisdiction must be decided first, because they concern

the court’s very power to hear the case.” Owens-Illinois, Inc. v.

Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (citations and

internal quotation marks omitted).

Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows

a defendant to move for dismissal upon the ground that a complaint

does not “state a claim upon which relief can be granted.” In

ruling on a 12(b)(6) motion to dismiss, a court “must accept as

true all of the factual allegations contained in the complaint.”

Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007)

(citations omitted). A court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Papasan v.

Allain, 478 U.S. 265, 286 (1986).

A court should dismiss a complaint if it does not contain

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Factual allegations must be sufficient “to raise a right to relief

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above the speculative level on the assumption that all of the

complaint’s allegations are true.” Id. at 545. Plausibility

exists “when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). A motion to dismiss under Rule 12(b)(6) “does not resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992) (citation omitted).

V. DISCUSSION

Defendants argue that the Court should dismiss the amended

complaint in its entirety because (1) FAIR lacks standing, (2)

FAIR has failed to name the proper parties, (3) Defendants are

immune from suit, (4) the Fifteenth Amendment does not extend to

State Bar elections, and (5) FAIR has failed to provide proper

notice of its constitutional challenge. For the reasons discussed

below, the Court disagrees.

A. FAIR has established associational standing because Member A

and Member B have standing in their own right, their interests

are germane to FAIR’s purpose, and their individual

participation is not required.

The judicial power vested by Article III of the Constitution

extends only to “cases” and “controversies.” U.S. Const. art.

III, § 2. Because federal courts are courts of limited

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jurisdiction, a plaintiff must first establish standing in order

to bring suit. See Clapper v. Amnesty Int’l USA, 568 U.S. 398,

408 (2013). To establish Article III standing, a plaintiff is

required to show the following:

(1) an injury in fact (i.e., a concrete and

particularized invasion of a legally protected

interest); (2) causation (i.e., a fairly

traceable connection between the alleged

injury in fact and the alleged conduct of the

defendant); and (3) redressability (i.e., it

is likely and not merely speculative that the

plaintiff’s injury will be remedied by the

relief plaintiff seeks in bringing suit).

Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273–

74 (2008) (citations and internal punctuation omitted).

Ultimately, the plaintiff, as the party invoking federal

jurisdiction, bears the burden of establishing these three

elements and must clearly allege facts demonstrating that each

element is met. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).

An organization may establish associational standing to sue on

behalf of its members “even without a showing of injury to the

association itself[.]” United Food & Com. Workers Union Local 751

v. Brown Grp., Inc., 517 U.S. 544, 552 (1996). To establish

associational standing, a plaintiff-organization must show (1)

that “its members would otherwise have standing to sue in their

own right”; (2) that “the interests at stake are germane to the

organization’s purpose”; and (3) that “neither the claim asserted

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nor the relief requested requires the participation of individual

members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (citation

omitted). Here, the requirements of associational standing are

satisfied.

1. Member A and Member B have standing in their own right

because FAIR has sufficiently pled injury-in-fact and

causation.

For the reasons discussed below, FAIR has sufficiently

alleged that Member A and Member B have suffered an injury-in-

fact, and the injury-in-fact is traceable to Defendants.

Defendants do not challenge redressability in their motion. Based

on the record before the Court, there is nothing to indicate that

redressability is not satisfied, so the Court will not address it

herein.

a. Injury-in-Fact3

An injury-in-fact must be “real and not abstract.” FDA v.

Alliance for Hippocratic Med., 602 U.S. 367, 381 (2024) (citation

omitted). The injury must also be “particularized,” meaning that

3 Defendants focus their injury-in-fact argument on Member A’s and

Member B’s inability to run for the African-American seat but do

not address Member A’s and Member B’s inability to vote in the

election for the African-American seat. Based on the record before

the Court, there is nothing to indicate that injury-in-fact with

respect to the Fifteen Amendment claim does not exist, and the

Court will not address it herein.

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the injury must “affect the plaintiff in a personal and individual

way and not be a generalized grievance.” Id. (citation and

internal quotation marks omitted). “By requiring the plaintiff to

show an injury-in-fact, Article III standing screens out

plaintiffs who might have only a general legal, moral, ideological,

or policy objection to a particular government action.” Id. Here,

Defendants argue that FAIR has not pled sufficient facts to show

that Member A and Member B have been personally harmed and are not

merely raising an ideological objection to the challenged State

Bar Bylaws. Defendants argue that Member A and Member B were

required to apply and be rejected from consideration for the Board

seat in order to establish an injury-in-fact. After reviewing

Supreme Court precedent in Equal Protection cases, the Court

disagrees. By way of background, the Fourteenth Amendment, in

relevant part, provides,

All persons born or naturalized in the United

States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the

equal protection of the laws.

U.S. Const. amend. XIV.

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In Turner v. Fouche, a Georgia law limited school board

membership to property owners, and the plaintiffs, who did not own

property, brought a class action Equal Protection challenge. 396

U.S. 346 (1970). The State of Georgia argued that standing did

not exist because it was not shown that the property ownership

requirement had ever operated to exclude anyone from the board of

education. Id. at 361 n.23. The Supreme Court rejected this

argument, finding that the plaintiffs had standing because it was

undisputed that at least one class member did not own property,

and Georgia could “hardly urge that her county officials may be

depended on to ignore a provision of state law.” Id.

In Clements v. Fashing, a provision in the Texas Constitution

provided for the automatic resignation of certain state

officeholders upon an announcement of their candidacy for another

office. 457 U.S. 957 (1982). The plaintiffs, who were state

officeholders, brought an Equal Protection challenge. Id. at 957.

They had not announced their candidacies for another office;

rather, they alleged that they would have announced their

candidacies were it not for the consequences of doing so. Id. at

962. The Court found that the dispute was not “merely

hypothetical” and found that the plaintiffs’ allegations were

sufficient to establish standing. Id.

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In Quinn v. Millsap, the Missouri Constitution required an

individual to own real property in order to serve on a governmental

board. 491 U.S. 95 (1989). The plaintiffs, who did not own real

property, filed a class action Equal Protection challenge on behalf

of all Missouri voters who did not own real property. Id. at 98.

The Supreme Court, finding that the class members had standing,

wrote, “[I]n Turner v. Fouche, we specifically held that a person

who does not own real property has Article III standing to

challenge under the Equal Protection Clause a state-law

requirement that one own real property in order to serve on a

particular government board.” Id. at 103. The Court further

wrote of the right, also recognized in Turner, “to be considered

for public service without the burden of invidiously

discriminatory disqualifications.” Id. at 105 (citing Turner, 396

U.S. at 362).

In Northeastern Florida Chapter of the Associated General

Contractors of America v. City of Jacksonville, a Jacksonville

ordinance required that 10% of the amount spent on city contracts

be set aside each fiscal year for so-called “Minority Business

Enterprises” (“MBEs”). 508 U.S. 656 (1993). The plaintiff, a

contractors association (most of whose members did not qualify as

MBEs), brought an Equal Protection challenge. Id. at 659. The

association alleged that many of its members regularly bid on and

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performed construction work for the City and “would have . . . bid

on . . . designated set aside contracts but for the restrictions

imposed” by the ordinance. Id. The Supreme Court wrote, “The

injury-in-fact in an equal protection case . . . is the denial of

equal treatment resulting from the imposition of the barrier,”

which was, in that case, “the inability to compete on an equal

footing in the bidding process[.]” Id. at 666. The Court wrote

that the plaintiff needed only demonstrate that its members were

“able and ready to bid on contracts and that a discriminatory

policy prevents them from doing so on an equal basis.” Id.

Finally, in Gratz v. Bollinger, two white in-state applicants

to the University of Michigan brought an Equal Protection challenge

with respect to the University’s use of racial preferences in

undergraduate admissions. 539 U.S. 244 (2003). One of the

students, after being denied admission, alleged that he was “able

and ready” to apply as a transfer student. Id. at 262. The

Supreme Court explicitly rejected the argument that in order to

show an injury-in-fact, the student was required to apply for

admission as a transfer student. Id. at 260–61 (stating that

“whether [the student] ‘actually applied’ for admission as a

transfer student is not determinative of his ability to seek

injunctive relief in this case”).

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

An outlier in the Court’s review of Equal Protection cases is

Moose Lodge No. 107 v. Irvis, which is cited by Defendants in their

memorandum. The plaintiff, as the guest of a member of a private

club, was refused service at the club’s dining room due to his

race. 407 U.S. 163, 164 (1972). He brought an Equal Protection

challenge, asserting that the Pennsylvania liquor board’s issuance

of a liquor license to the club made the discrimination state

action for Equal Protection purposes. Id. at 165. The district

court ruled in favor of the plaintiff, finding that the club’s

membership policies — in addition to its policies pertaining to

guests — were unconstitutional. Id. at 166. The Supreme Court

found that the plaintiff lacked standing to challenge the

membership policy because he “never sought to become a member.”

Id. at 167. The Court found that he only had standing to challenge

the policies regarding the serving of guests. Id. at 166. In

reading the decision, it is unclear whether the plaintiff pleaded

that he wanted to become a member. This Court acknowledges that

Irvis is inconsistent with the other Equal Protection cases

discussed above, but it also notes all except Turner were decided

after Irvis, and they do not mention or cite Irvis.

Turner, Clements, Quinn, Associated General Contractors, and

Gratz — all Equal Protection cases — did not require the

plaintiff(s) to apply for a position, announce a candidacy, or bid

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

on a project in order to establish an injury-in-fact. Rather, the

cases appear to stand for the notion that the existence of a

discriminatory barrier is the injury-in-fact. While it is clear

that a plaintiff must be “able and ready” to be considered, this

does not equate to a requirement that a plaintiff apply to be

considered for a position from which he is explicitly excluded.

Here, FAIR alleges that Defendants enforce State Bar Bylaws

reserving one seat on the Board for an African-American

representative. FAIR alleges that Member A and Member B were

“ready, willing, and able” to be elected to the Board in 2025 but

were disqualified for the African-American seat in 2025 due to

their race. FAIR also alleges that Member A and Member B “will be

ready, willing, and able” to be elected to the Board in 2029 but

will be disqualified for the African-American seat opening in 2029

due to their race. FAIR has sufficiently alleged that a

discriminatory barrier exists, and injury-in-fact is satisfied.4

Defendants argue that because other Board seats are

available, Member A and Member B have not suffered an injury-in-

fact. They assert that “when there exist ten paths to the same

4 Defendants spend much of their injury-in-fact discussion

analyzing Carney v. Adams, 592 U.S. 53 (2020). Carney is not an

Equal Protection case, and the Court finds Turner, Clements, Quinn,

Associated General Contractors, and Gratz more on point in

analyzing whether injury-in-fact is sufficiently pled.

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

destination, an individual is not ‘steered away’ from that

destination just because one of those paths . . . is obscured from

her view.” See Opiotennione v. Bozzuto Mgmt. Co., No. 20-1956,

2021 WL 3055614, at *5 (D. Md. July 20, 2021), aff’d, 130 F.4th

149 (4th Cir. 2025)). The plaintiff in Opiotennione, however,

brought claims under the laws of Washington, D.C. and Montgomery

County, Maryland — not under the United States Constitution. Id.

at *1. Providing an available “alternative” for a litigant to

pursue does not excuse the state of liability for violating the

litigant’s constitutional rights. See Fed. Election Comm’n v.

Cruz, 596 U.S. 289, 290, 298 (2022) (finding that forcing an

appellee to pursue an alternative “misses the point” and “would

require it to forgo the exercise” of a constitutional right). To

the extent Defendants argue that Member A and Member B did not

avail themselves of the grievance process, this argument is

rejected because “federal courts cannot require exhaustion under

§ 1983.” Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496,

512 (1982). Overall, injury-in-fact has been sufficiently pled.

b. Causation and Traceability

“A plaintiff’s injury satisfies the traceability element of

standing when there is a causal connection between the injury and

the [defendant’s] conduct complained of by the plaintiff.”

Disability Rights S.C. v. McMaster, 24 F.4th 893, 901 (4th Cir.

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

2022) (citation and internal quotation marks omitted). “While the

defendant’s conduct need not be the last link in the causal chain,

the plaintiff must be able to demonstrate that the alleged harm

was caused by the defendant, as opposed to the independent action

of some third party not before the court.” Id. (citations and

internal quotation marks omitted). Causation is established if it

is “likely that the injury was caused by the conduct complained

of[.]” Friends of the Earth, Inc. v. Gaston Copper Recycling

Corp., 204 F.3d 149, 154 (4th Cir. 2000). When a government

enactment denies a plaintiff equal protection, that injury-in-fact

is caused by it. See City of Jacksonville, 508 U.S. at 666 n.5

(finding that it flows from the injury-in-fact analysis that the

City’s ordinance was the “cause” of injury).

Here, causation and traceability are satisfied because

Defendants are charged with enforcement of allegedly

unconstitutional State Bar Bylaws. See Ex parte Young, 209 U.S.

123, 159 (1908) (“The act to be enforced is alleged to be

unconstitutional; and if it be so, the use of the name of the state

to enforce an unconstitutional act to the injury of complainants

is a proceeding without the authority of, and one which does not

affect, the state in its sovereign or governmental capacity.”).

FAIR has cited specific actions that Defendants are required to

take to enforce the Bylaws that are the root of Member A’s and

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

Member B’s alleged injuries: the Executive Director receives

nomination petitions (Am. Compl., ECF No. 27, at ¶ 20); the

Executive Director identifies African Americans registered with

the State Bar and notifies them of the nomination process (Id.

¶ 21); if the Executive Director does not receive a petition, the

President appoints a committee to nominate two eligible African-

American attorneys for that year’s election (Id. ¶ 22); the

President faithfully endeavors to successfully prosecute the State

Bar’s objects, aims, and purposes, including the election for the

African American seat on the Board (Id. at ¶ 22); and the

President-Elect assists the President in the execution of the

outlined duties (Id. ¶ 23). Accordingly, causation and

traceability are sufficiently pled.

2. Member A’s and Member B’s interests are germane to FAIR’s

purpose because both seek to eliminate state-sanctioned

discrimination based on race.

The germaneness requirement for associational standing

“demand[s] that an association plaintiff be organized for a purpose

germane to the subject of its member’s claim [to] raise[] an

assurance that the association’s litigators will themselves have

a stake in the resolution of the dispute, and thus be in a position

to serve as the defendant’s natural adversary.” Dayton Area

Chamber of Commerce v. Becerra, No. 3:23-cv-156, 2024 WL 3741510,

at *5 (S.D. Ohio Aug. 8, 2024) (citing Brown Grp., Inc., 517 U.S.

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

at 555-56). The germaneness requirement has no stricter standard

than being “pertinent or relevant” to a plaintiff-organization’s

purposes. Nat’l Constructors Ass’n v. Nat’l Elec. Contractors

Ass’n, Inc., 498 F. Supp. 510, 521 (D. Md. 1980), aff’d as

modified, 678 F.2d 492 (4th Cir. 1982).

Here, the amended complaint cites FAIR’s purpose of

“defend[ing] the principle of equal protection and equal rights

for all.” Am. Compl., ECF No. 27, at ¶ 8. It claims that FAIR

“engages in litigation to ensure that diversity and inclusion

efforts are nondiscriminatory.” Id. FAIR alleges that it “also

works at the grassroots level to promote a common culture based on

equality and fairness.” Id. A lack of equal protection and

fairness is the root of FAIR’s allegations on behalf of Member A

and Member B. FAIR and Member A and Member B seek to eliminate

state-sanctioned discrimination based on race. Based on the

record, the Court finds that Member A’s and Member B’s interests

are germane to FAIR’s purpose.5

5 Defendants argue in their briefing that Member A’s and Member

B’s interests are not germane because FAIR lacks evidence of

“background circumstances” to support race-based discrimination

claims by Member A and Member B. In making this argument,

Defendants rely on Ames v. Ohio Dep’t of Youth Servs., 87 F.4th

822, 824 (6th Cir. 2023). Ames was brought under Title VII of the

Civil Rights of 1964, and it did not address germaneness or

associational standing, so it has no applicability here.

Regardless, the Supreme Court vacated the Sixth Circuit’s judgment

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

3. Member A’s and Member B’s participation is not required

because FAIR seeks only prospective, injunctive relief

regarding enforcement.

One way the participation of individual members could be

required would be if the members have diverse statuses and

interests. In Maryland Highways Contractors Association, Inc. v.

State of Maryland, the Fourth Circuit found that the plaintiff, a

highway contractors association, was not “in a position to speak

for its members” on whether a law violated the constitutional and

statutory rights of its members because some of the members had

too diverse of statuses and interests. 933 F.2d 1246, 1252–1253

(4th Cir. 1991). In fact, some members would have stood to benefit

from the challenged law. Id. In other words, the participation

of an individual member of an association could be required “when

conflicts of interest among members of the association require

that the members must join the suit individually in order to

protect their own interests.” Id. at 1252.

Here, FAIR’s purposes include the defense of equal protection

and equal rights for all, the enforcement of non-discrimination in

diversity and inclusion efforts, and the protection of its members’

constitutional rights. See Am. Compl., ECF No. 27, at ¶ 8. FAIR

alleges that the State Bar’s racially discriminatory election

on June 5, 2025. See Ames v. Ohio Dep’t of Youth Servs., No. 23-

1039, 145 S.Ct. 1540 (June 5, 2025).

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

processes are an affront to these convictions, so the interests of

all of its members would likely be vindicated in successful

litigation to protect those principles. Further, FAIR seeks only

prospective declaratory and injunctive relief against the

enforcement of certain State Bar Bylaws. FAIR does not seek to

place a specific member on the Board and does not seek any other

relief specific to any individual member. Instead, should FAIR

prevail on the merits, all of its members (who are otherwise

eligible) will be able to receive equal consideration for the Board

seat currently reserved for an African-American representative.

The Court agrees with FAIR that it adequately stands in its

Members’ shoes to bring this case.

B. Because Defendants are sued in their official capacities, the

only applicable immunity would be sovereign immunity, which

was not raised by Defendants and would not apply pursuant to

Ex parte Young.

In an official capacity action, the personal immunity

defenses available to a public official sued in his or her personal

capacity under 42 U.S.C. § 1983 are unavailable, and the only

immunities that can be claimed are forms of sovereign immunity

that the entity may possess, such as the Eleventh Amendment:

When it comes to defenses to liability, an

official in a personal-capacity action may,

depending on his position, be able to assert

personal immunity defenses, such as

objectively reasonable reliance on existing

law. See Imbler v. Pachtman, 424 U.S. 409, 96

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DENYING MOTION TO DISMISS [ECF NO. 34]

S.Ct. 984, 47 L.Ed.2d 128 (1976) (absolute

immunity); Pierson v. Ray, 386 U.S. 547, 87

S.Ct. 1213, 18 L.Ed.2d 288 (1967) (same);

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct.

2727, 73 L.Ed.2d 396 (1982) (qualified

immunity); Wood v. Strickland, 420 U.S. 308,

95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (same).

In an official-capacity action, these defenses

are unavailable. Owen v. City of

Independence, 445 U.S. 622, 100 S.Ct. 1398, 63

L.Ed.2d 673 (1980); see also Brandon v. Holt,

469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878

(1985). The only immunities that can be

claimed in an official-capacity action are

forms of sovereign immunity that the entity,

qua entity, may possess, such as the Eleventh

Amendment. While not exhaustive, this list

illustrates the basic distinction between

personal- and official-capacity actions.

Kentucky v. Graham, 473 U.S. 159, 166–67 (1985). The Eleventh

Amendment to the United States Constitution provides, in pertinent

part, “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another

State[.]” Eleventh Amendment immunity also applies to “state

employees acting in their official capacity.” Harter v. Vernon,

101 F.3d 334, 337 (4th Cir. 1996) (citation omitted). “[A] suit

against a state official in his or her official capacity is not a

suit against the official but rather is a suit against the

official’s office. . . . As such, it is no different from a suit

against the State itself.” Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989) (citations omitted).

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

There are three exceptions to sovereign immunity. First, the

State may waive its right to immunity and consent to suit. Lapides

v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002).

The State has not done so here. Second, “Congress may abrogate

the States’ Eleventh Amendment immunity when it both unequivocally

intends to do so and act[s] pursuant to a valid grant of

constitutional authority.” Bd. of Trs. of Univ. of Ala. v.

Garrett, 531 U.S. 356, 363 (2001) (citation and internal quotation

marks omitted). While 42 U.S.C. § 1983 provides for a federal

cause of action, it does not abrogate the Eleventh Amendment. See

Quern v. Jordan, 440 U.S. 332, 332 (1979). Third, pursuant to Ex

parte Young, 209 U.S. 123 (1908), and its progeny, “the Eleventh

Amendment permits suits for prospective injunctive relief against

state officials acting in violation of federal law.” Frew ex rel.

Frew v. Hawkins, 540 U.S. 431, 437 (2004) (citation omitted).

Specifically, with respect to the Ex parte Young exception, the

Court “need only conduct a straightforward inquiry into whether

the complaint alleges an ongoing violation of federal law and seeks

relief properly characterized as prospective.” Indus. Servs.

Grp., Inc. v. Dobson, 68 F.4th 155, 163–64 (4th Cir. 2023)

(citations omitted). “[T]he requirement that the violation of

federal law be ongoing is satisfied when a state officer’s

enforcement of an allegedly unconstitutional state law is

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

threatened, even if the threat is not yet imminent.” Id.

(citations omitted). “[I]t is sufficient that . . . [the]

[c]omplaint merely alleges the ongoing behavior.” Id. (citation

omitted and emphasis removed).

Here, the only immunity that Defendants could have raised is

sovereign immunity, and they did not raise it. If they had raised

it, the Ex parte Young exception would apply. FAIR is seeking

prospective, injunctive relief to prevent the enforcement of

certain State Bar Bylaws in question, which is an ongoing activity.

Accordingly, Defendants are not entitled to sovereign immunity

(which was not raised) or any other immunities.

C. FAIR named the proper parties because Defendants are charged

with enforcement of the allegedly unconstitutional State Bar

Bylaws.

The proper party in an action arising under 42 U.S.C. § 1983

includes “[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State” deprives a

person of his or her civil rights. 42 U.S.C. § 1983. “[A] state

official in his or her official capacity, when sued for injunctive

relief, would be a person under § 1983 because official-capacity

actions for prospective relief are not treated as actions against

the State.” Will, 491 U.S. at 71 n.10 (citations and internal

quotation marks omitted). To identify proper defendants,

plaintiffs must allege “some connection” between the state

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

official and the enforcement of “an act alleged to be

unconstitutional.” Lytle v. Griffith, 240 F.3d 404, 409 (4th Cir.

2001) (citations omitted).

Here, FAIR has pled the required connection between

Defendants and the enforcement of Bylaws 5.02(d), 5.06(b), and

5.07. Specifically, FAIR asserts that the Executive Director

identifies African-American attorneys, notifies them of the

nominating process, and receives their nominating petitions. Am.

Compl., ECF No. 27, at ¶¶ 20–21. FAIR asserts that if the Executive

Director does not receive nominations, the President must appoint

a committee to make those nominations. Id. ¶ 22. FAIR asserts

that the President and President-Elect are tasked with faithful

execution of the State Bar’s objects, aims, and purposes, which

include the racial exclusion in the challenged election. Id.

¶¶ 22–23. FAIR does not seek to compel Defendants to promulgate

or otherwise make changes to the Bylaws or Administrative Rules.

Rather, FAIR seeks to enjoin Defendants from enforcing the

complained-of Bylaws and requests a declaration that they are

unconstitutional. Accordingly, FAIR has named the proper parties

and has sufficiently stated its claims.

Defendants rely on Hinerman v. Daily Gazette Co., Inc. to

argue that they are not public officials. 423 S.E.2d 560 (W. Va.

1992). In Hinerman, the State Supreme Court found that a State

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

Bar official was not a “public official” for purposes of a

defamation action. Id. at 583. The court also wrote,

The state bar is merely an advisory body to

the West Virginia Supreme Court of Appeals.

The bar has no authority of its own. As

requested by this Court, the state bar can

propose changes to the various rules of the

Court, but its role is never more than that of

an assistant or advisor to this Court.

Id. Defendants also argue that they do not have independent,

individual authority to make changes to the State Bar Bylaws. The

Court finds Hinerman unpersuasive because the term “public

official” in a defamation action is a term of art that is

inapplicable here. By statute, the State Bar is “a part of the

judicial department of the state government[.]” W. Va. Code § 51-

1-4a(d). By statute, the State Bar is an administrative agency of

the State Supreme Court. Id. Its officers are tasked with

enforcing its Bylaws, which are promulgated by the State Supreme

Court. Because FAIR is asserting that Defendants enforce

unconstitutional state-issued Bylaws, and because FAIR is

requesting injunctive relief, the Court finds that FAIR has named

the proper parties.

D. The Fifteenth Amendment applies to State Bar elections

because the elections are state-sanctioned and involve public

issues.

The Fifteenth Amendment provides, in pertinent part, “The

right of citizens of the United States to vote shall not be denied

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

or abridged by the United States or by any State on account of

race, color, or previous condition of servitude.” U.S. Const.

amend. XV, § 1. It is “simple in command,” “comprehensive in

reach,” “[f]undamental in purpose and effect,” and “self-executing

in operation[.]” Rice v. Cayetano, 528 U.S. 495, 512 (2000). In

analyzing whether the Fifteenth Amendment is implicated in an

election, “[t]he vital requirement is State responsibility — that

somewhere, somehow, to some extent, there be an infusion of conduct

by officials, panoplied with State power, into any scheme by which”

individuals are “denied voting rights merely because” of their

race or color. Terry v. Adams, 345 U.S. 461, 473 (1953). “The

Amendment grants protection to all persons, not just members of a

particular race.” Rice, 528 U.S. at 512 (stating that the terms

of the Fifteenth Amendment “transcend[] the particular controversy

which was the immediate impetus for its enactment”).

Here, the Court concludes that the Fifteenth Amendment

applies to State Bar elections. FAIR has sufficiently pled that

state officials have engaged in conduct by which individuals are

denied voting rights merely because of their race. By statute,

the State Bar is “a part of the judicial department of the state

government[.]” W. Va. Code § 51-1-4a(d). By statute, the State

Bar is an administrative agency of the State Supreme Court. Id.

Defendants are tasked with enforcing the State Bar Bylaws, which

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

are promulgated by the State Supreme Court. The Bylaws provide

that only African Americans may vote in the election for the

African-American Board seat. Certainly, assuming that FAIR’s

allegations are true, this is a situation where “somewhere,

somehow, to some extent,” there was an “infusion of conduct by

officials, panoplied with State power,” into a scheme by which

individuals were denied voting rights merely because of their race.

See Terry, 345 U.S. at 473.

The Court’s ruling is supported by Supreme Court precedent

indicating that the Fifteenth Amendment applies to elections for

seats on boards of state agencies. In Rice v. Cayetano, a Hawaii

law limited who could vote in an election for the governing

authority of a state agency known as the Office of Hawaiian

Affairs. 528 U.S. 495 (2000). The right to vote was limited to

“Hawaiians,” which was defined as “those persons who are

descendants of people inhabiting the Hawaiian Islands in 1778.”

Id. at 499. The plaintiff, who was a Hawaiian citizen lacking the

requisite ancestry to be considered “Hawaiian,” challenged the

provision, and the Supreme Court found that the election limitation

violated the Fifteenth Amendment. Id. at 524.

The Fifteenth Amendment also applies to elections with far

less state involvement than what has been alleged here. For

instance, the Supreme Court has found that pre-primaries run by

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

self-governing private groups may implicate the Fifteenth

Amendment. See Terry, 345 U.S. 461. In Terry v. Adams, the

Jaybird Democratic Association, a private group whose membership

was limited to white voters, conducted “pre-primary” elections.

Id. at 463. Candidates who were successful in the pre-primary

elections did not automatically enter the local Democratic

primaries, but they “nearly always [did] so,” and they almost

always “won without opposition” in those primaries and in the

general elections. Id. The Jaybirds contended that their

elections were not regulated by the state, so they fell outside

the Fifteenth Amendment’s purview. Id. at 462–63. The Supreme

Court, however, disagreed, finding that the elections were an

unlawful attempt to duplicate election processes in order to defeat

the purpose of the Fifteenth Amendment. Id. at 466. Here, taking

FAIR’s allegations as true, the level of state involvement far

exceeds the level of state involvement found to violate the

Fifteenth Amendment in Terry.

As the parties have discussed, the Fifteenth Amendment

applies to, but is not limited to, “any election in which public

issues are decided or public officials selected.” Rice, 528 U.S.

at 523 (citing Terry, 345 U.S. at 468). “All citizens, regardless

of race, have an interest in selecting officials who make policies

on their behalf, even if those policies will affect some groups

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

more than others.” Id. Based on the explicit state involvement

here, the Court believes it unnecessary to analyze whether “public

issues” or “public officials” are implicated in a State Bar

election. Regardless, the Court would find that they are.

The regulation of the legal profession on behalf of the State

Supreme Court is a matter that concerns public issues. All West

Virginia attorneys, including Member A and Member B, have an

interest in the selection of Board members who make policies on

their behalf. The State Bar is not a private club. It is the

state agency that regulates the practice of law in West Virginia.

All licensed attorneys in good standing must be members. The State

Bar’s self-described purposes include “protect[ing] the interests

of the public” and “improv[ing] the relations between the public

and the bench and the bar[.]” Exh. 2, ECF No. 36-2, at art. II.

The citizens of West Virginia have an interest in the selection of

the Board members, whose policies may affect them. For these

reasons, the Court finds that State Bar elections are elections

“in which public issues are decided.” See Rice, 528 U.S. at 523.

Again, Defendants rely on an inapposite state law defamation

case to claim that elected members of the State Bar’s Board of

Governors are not “public officials[.]” See Hinerman, 423 S.E.2d

583. As discussed earlier, “public official” is a term of art in

the context of a defamation claim, so Hinerman is unpersuasive.

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

Defendants also argue that the Board elections do not involve

public issues because they are not open to the public. Terry makes

it clear, however, that an election need not be open to the public

to violate the Fifteenth Amendment. For all of these reasons, the

Court finds that the Fifteenth Amendment applies to State Bar

elections.

E. FAIR did not need to file notice of a constitutional challenge

because FAIR is not challenging a state statute.

Federal Rule of Civil Procedure 5.1, in relevant part,

requires a plaintiff to file a notice of constitutional question

if “a state statute is questioned and the parties do not include

the state, one of its agencies, or one of its officers or employees

in an official capacity[.]” Fed. R. Civ. P. 5.1(a)(1)(B). Here,

Rule 5.1 does not apply because FAIR has not challenged the

constitutionality of a state statute. Instead, it has challenged

the constitutionality and enforcement of various State Bar Bylaws.

Even if the challenged Bylaws could be construed as state statutes,

and even if notice under Rule 5.1 were necessary, the Court finds

that notice was provided because Defendants are sued in their

official capacities as officers of the administrative agency of

the State Supreme Court.

FAIR V. PICKENS ET AL. 1:24-CV-115

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 34]

F. The Court denies Defendants’ motion regarding attorney’s fees

because the claims under 42 U.S.C. § 1983 survive.

Under 42 U.S.C. §$ 1988(b), “[i]n an action or proceeding to

enforce a provision of section[] . . . 1983, . . . the court, in

its discretion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee as part of the costs[.]”

Defendants argue that FAIR’s claim for attorney’s fees is

inappropriate because Defendants are not public officials. FAIR

does not specifically respond to the argument regarding attorney’s

fees. Because the Court has denied the motion to dismiss the

claims brought pursuant to 42 U.S.C. § 1983, it will not strike or

dismiss the request for attorney’s fees.

VI. CONCLUSION

For the reasons discussed above, the motion to dismiss is

DENIED [ECF No. 34]. The parties are DIRECTED to meet and confer

and submit, on or before August 20, 2025, a proposed schedule to

govern the case moving forward.

It is so ORDERED.

The Clerk is DIRECTED to transmit copies of this Memorandum

Opinion and Order to counsel of record.

DATED: August 6, 2025

Ton 8 Kl

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

40