Opposition Brief — DeBauche v. Trani

A Lr ee es Teh

No. 99-1009

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Suprente Court of tbe United States

SUE HARRIS DEBAUCHE,

Petitioner,

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Vv.

VIRGINIA COMMONWEALTH UNIVERSITY,

a corporation established pursuant to Virginia Code

§$23-50.4 and an instrumentality of the Commonwealth

of Virginia; EUGENE P. TRANI, individually and in

his official capacity as President of Virginia

Commonwealth University;

LAWRENCE DOUGLAS WILDER, in his individual

capacity; CLEAR CHANNEL RADIO, INC.,, t/a

WRVA, a Nevada corporation and

CENTRAL VIRGINIA EDUCATIONAL

TELECOMMUNICATIONS, INC., t/a WNVT,

a Virginia corporation.

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Roger L. Gregory

Counsel of Record

Lawrence D. Wilder, Jr. D ST AVAILA , [

Laura M. Hillenbrand BEST AVAILABLE

WILDER & GREGORY

707 East Main Street, Suite 1000

Richmond, Virginia 23219

(804) 643-8401

Counsel for Respondent

Lawrence Douglas Wilder

IHE LEX GROUP @ 1205 East Main Street @ Suite 2 East @ Richmond, VA 23219

(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3256

QUES TIONS PRESENTED

l.

Did the Appellate Court appropriately uphold the

District Court’s ruling dismissing this action against

Wilder under Rule 12(b)(6) of the Federal Rules of

Civil Procedure for Petitioner’s failure to state a

claim upon which recovery is allowed by law?

Did the Appellate Court err in remanding to the

District Court further consideration of the decision to

award Wilder attorneys’ fees incurred in the defense

of Petitioner’s meritless action against Wilder as a

private party for alleged violation of her

constitutional and civil rights?

QUESTIONS PRESENTED FOR REVIEW

TABLE OF AUTHORITIES

I.

II.

Il.

TABLE OF CONTENTS

THIS PETITION DOES NOT RAISE ANY

SIGNIFICANT LEGAL ISSUES NOT

PREVIOUSLY DETERMINED BY THIS

RR Pio udder emnna ee ke

BOTH THE DISTRICT COURT AND THE

FOURTH CIRCUIT WERE CORRECT IN

DISMISSING THE PETITIONER’S

ACTION AGAINST RESPONDENT

WILDER AS THERE WERE NO FACTUAL

ASSERTIONS OF STATE ACTION BY

WILDER, ONLY CONCLUSORY

PRION oso es

AS A_ PRIVATE PARTY WILDER

CANNOT BE LIABLE FOR A VIOLATION

OF DEBAUCHE’S CONSTITUTIONAL

ia ge eR ON ROE et ey

A. If Wilder Is Not A State Actor, He

Cannot Be Liable for Violation of

DeBauche’s Constitutional Rights ..........

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OPT eh Tn AOR OO TE CEC Aah eh Sbebneesddeddiesen

CONCLUSION

Only if Wilder Was Acting As A

Public Broadcaster As Defined in the

Forbes Decision, Could He Be Held

Liable for Violation of DeBauche’s

Constitutional Rights ................cccseeeeeees

The Utter Lack of Legal Support for

DeBauche’s Claims Against Wilder

Warrants Payment of Attorneys’ Fees

and the Decision of the Fourth Circuit

to Remand that Issue to the District

Court Should be Upheld ...........0

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TABLE OF AUTHORITIES

CASES:

Andrews v. Federal Home Loan Bank of Atlanta,

SORE 2d 21% CO" Cae, TFB isco as oe 6,9

Arkansas Educational Television Commission v.

Forbes,

523 U.S. 666, 118 S. Ct. 1633,

BD Bi. SG: Bb ID 09 Fae iis cisocs cacanindincrcvasoninsenetacsnoiimabiinnes passim

Carter v. Norfolk Community Hospital Assoc.. Inc..,

76% F.2d 570 CH Che PO 10

Christiansburg Garment Co. v. Equal Employment

Opportunity Comm’n,

434 US. GE CGT kok chic edendadbicieceideegdeadcaitins 15

Edmondson v. Leesville Concrete Co., Inc.,

DO US, GER CIGPER: sccsinsiscasacickeecintesarcianteniaceabeabedaaaal 10

Evans v. Newton,

Fe CS. Fe CO PON onan saicudsshsadscccubipsiabenatupuaistan tian as a eeaiecass 9

Flagg Bros. v. Drash,

436 US. 149, 98 S.Ct. 1729, 56 L. Ed. 2d 185 (1978) ............ 10

Hirsch v. Arthur Anderson,

72. F390 FEBS Cl Can, SSI scientists 6

Hudgens v. NLRB,

424 TS.. SUL LEG TG) asc iiS caked seit eactdateecsbans 10

Hurley v. Irish-American Gay, Lesbian and

Bisexual Group,

FUSED, SOE Cl PIAS viccisatcciaiganahncnaimamapiead 11, 12, 13

iv

Jackson v. Metropolitan Edison Co.,

419 US. 345, 95 S. Ct. 449,

42 LEG 20 O77 GT is se 8,9

Keyishian v. The Board of Regents of the University of the

State of New York

389 U.S. SRF, C7 BAA. Bi 1 oe hinckciscoasdsecaeceacacn 8

Koltz v. Bezmen,

S22 F. Supp. 114 (E.DAN. Ys FOG S yo sice nv ecceaccens 10

Lugar v. Edmondson Oil Co.,

457 U.S. 922, 102 S.Ct. 2744, 73 L. Ed. 2d 482 (1982)....... 8, 11

Morse v. Lower Merion School District,

132 F. 36 SOG Ge Ct: TSG. anicnditeie ae 6

National Broadcasting Co. v. Communications Workers

of America,

$60 F.24 1022 (11° Clr: 198 on ee 8-9

National Collegiate Athletic Ass’n v. Tarkanian,

486 UB. 100. TSE siisiccdccciiceiein tga 10-11

Shelley v. Kraemer,

SSA USB E CE FB ha viccceccsasscséasticcssicssctianeeli eed ie een emer 10

Sistrunk v. City of Strongville,

99 F.3d 194 (6" Cir. 1996), cert denied,

1178. Ct 2409 0997). os a ee 11

Sweezy v. New Hampshire,

354 U.S. 234, 778.Cu, 1203 (1980). g

UAW. LOCAL 5285 v. Gaston Festivals,

43 F.3d G02 (4" Ce. 1998) occ scoscvcsisccs asp deeacenierannnmeret 9

Vv

United Auto Workers v. Gatson Festivals Inc.,

Pe ee he ET. EER RE eore ction Ronen 11

Watts-Mean v. Prince George’s Family Crisis Center,

ARTY TS 0 RS. ERI oe ee reenter coe 10

RULES:

Sia PIN a cicctaicapcossbangssicssteaesglaieemesecvnenieimnsbastoodaaan 2, 5, 10

STATUTES:

17 BE i cic neni aencaodies 3, 14, 15, 16

AE STORE iin Gis ksi enol 14

vi

STATEMENT OF THE CASE

This case involves a private citizen, Wilder, who in

April 1997, in his private individual capacity, invited Mssrs.

Donald S. Beyer (hereinafter referred to as “Beyer”) and

James G. Gilmore (hereinafter referred to as “Gilmore”) to

join in a debate. (Am. Compl. {J 25,27, A 89). As of April,

1997, Gilmore and Beyer were the only duly qualified

candidates for Governor. Gilmore and Beyer, on October

ee. 1997, debated in a one-time event which came to be

known as Debate Virginia. (Am. Compl. J 51, A 97). As to

the core decision at issue in this case, the question of

invitees, Wilder alone arranged the content of Debate

Virginia (Am. Compl. §25, A 89). As the sole private invitor

and in this individual and personal capacity, Wilder

exercised sole discretion regarding the content of the

program, namely the identity of the participants. Such

decision making regarding choice of speakers was well

within Wilder’s constitutional prerogative.

Months before Petitioner qualified as the Reform

Party candidate, Wilder, acting alone and in his individual

capacity, secured basic arrangements regarding the debate

with Gilmore and Beyer. (Am. Compl. §§ 24(a) and 25, A

88-89). The agreement between Wilder and Gilmore and

Beyer consisted of their commitment to participate in a

debate which Wilder would moderate. (Am. Compl. 99, A

84) However, the debate had to occur “live” and on a

Monday evening between 8:00 and 10:00 p.m. because that

‘vas the time slot for Wilder’s WRVA radio broadcast. (Am.

Comp. § 25, A 89). Having extended invitations to and

having secured acceptances from Beyer and Gilmore, Wilder

considered other venues for his debate. CU offered to

furnish its facilities and support. (Am. Compl. §27, A 89).

In September 1997, DeBauche was certified as the

Reform Party candidate for Governor. (Am. Complaint § 19,

A 87). Subsequent to that certification, DeBauche alleges

that she or persons acting on her behalf attempted to contact

Wilder so as to participate in Debate Virginia. (Am. Compl.

{| 47, 48, 49 and 50, A 96).

There is no allegation that Wilder received

Petitioner’s communications. There is no allegation that

Wilder or anyone else rejected Petitioner’s efforts to

participate in Debate Virginia. Petitioner merely alleges that

Wilder did not return her calls or respond to her alleged

requests. (Am. Compl. §{ 47, 48, 49 and 50, A 96). In

addition, there are no factual allegations to support

Petitioner’s allegation of Wilder’s alleged intent to exclude

Petitioner from Debate Virginia on the basis of her

“viewpoint”. There are no factual allegations beyond

conclusory allegations concerning Wilder’s policy, custom

and/or practice regarding the regulation of access to, and

expression in, designated public fora. Finally, there are no

factual allegations in support of Petitioner’s contention that

Wilder acted under color of state law when he made the

deicision regarding the participants in Debate Virginia.

At the District Court level, all parties filed Motions to

Dismiss pursuant to Rule 12 (b)(6) of the Federal Rules of

Civil Procedure (the “Rules”).' The District Court granted

the motions and dismissed Petitioner’s action in its entirety.

Petitioner appealed the decision. In a separate Order, the

District Court awarded attorneys’ fees to Wilder, CVTEC

and Clear Channel Communications. This ruling was

appealed separately. Both appeals were consolidated before

the Fourth Circuit. The Fourth Circuit affirmed the decision

on the merits and remanded only the issue of attorneys fees

to the District Court for future findings. A 24.

' Wilder also filed a Motion for Summary Judgment pursuant to the

provisions of Rule 56, but this motion was determined by the District

Court to be moot. :

ARGUMENT

Reasons for Denying the Writ

First, the District Court’s ruling, affirmed by the

Fourth Circuit Court of Appeals (the “Fourth Circuit”), that

the action brought by Petitioner against the Respondents

does not state a claim upon which, as a matter of law, relief

can be granted was correct as a matter of law. The position

taken by Petitioner does not present this Court with any

issues not already decided in Arkansas Educational

Television Commission v. Forbes 523 U.S. 666, 118 S. Ct.

1633; 140 L. Ed. 2d 875 (1998). Finally, both the Fourth

Circuit and the District Court correctly assessed the factual

allegations of Petitioner’s amended complaint and

determined, despite conclusory allegations to the contrary,

that Petitioner did not and cannot plead a cause of action

against Wilder, or any other party to this lawsuit. The

Petition does not meet the standards set forth in Rule 10 for

granting a writ of certiorari because there is no indication of

a conflict between the Circuits on an issue of federal or

important law, nor is there an indication that the Fourth

Circuit failed to correctly apply current law to the facts

presented.

Wilder did not seek imposition of attorneys’ fees

under 42 USC § 1988 against any person other than the

Peitioner. Accordingly, Wilder does not take a position on

the issue of the Court’s finding that such fees may be

imposed against the Petitioner’s pro bono civil rights

counsel. Wilder asserts only that this matter should be

remanded to the District Court for findings consistent with

the Fourth Circuit’s opinion on the issue of attorneys fees.

I. THIS PETITION DOES NOT RAISE ANY

SIGNIFICANT LEGAL ISSUES NOT

PREVIOUSLY DETERMINED BY _ THIS

COURT

Petitioner argues that this is a matter which should be

addressed by this court because this is an election year and

“because candidate debates are of exceptional significance in

the electoral process.” Petition for Writ of Certiorari, p. 5.

This, however, is exactly why this Court need not address

this matter further, as all the issues raised by Petitioner,

relevant to candidate debates, those of viewpoint

discrimination and access to a public forum, have been

previously decided by this Court.

Petitioner describes her case as one which must be

decided in light of this Court’s ruling in the case of Arkansas

Educational Television Commission v. Forbes 523 U.S. 666,

118 S. Ct. 1633; 140 L. Ed. 2d 875 (1998). In light of that

characterization, it is Wilder’s position that Petitioner’s case

raises no legal issues not previously decided by this Court

with regard to viewpoint discrimination and access to a

public forum. In Forbes, this Court determined that the First

Amendment of its own force does not compel public

broadcasters to allow access to their programming. Further,

in Forbes, it was the broadcaster, a state created agency,

who was the defendant. None of these decisive factors exist

in this case. Further, in Forbes, none of the participants in

the debate, the moderator or any of the questioners, were

sued. Petitioner is asking this Court, which applied essential

principles of Freedom of Speech to a state owned agency in

Forbes, to create state action where it does not exist. Forbes

neither stands for nor implies the proposition that because

candidate debates are important, they rise to the level of state

action, which is the only way Petitioner’s allegations against

Wilder survive any reasonable scrutiny.

II. BOTH THE DISTRICT COURT AND THE

FOURTH CIRCUIT WERE CORRECT IN

DISMISSING THE PETITIONER’S ACTION

AGAINST RESPONDENT WILDER AS THERE

WERE NO FACTUAL ASSERTIONS OF

STATE ACTION BY WILDER, ONLY

CONCLUSORY ALLEGATIONS

In ruling on a motion to dismiss under Rule 12(b)(6)

of the Rules, the court need not accept the truth of

conclusory allegations of fact. In its consideration of the

District Court’s ruling dismissing this matter, the Fourth

Circuit detailed all the factual allegations of Petitioner’s First

Amended Complaint. After this analysis, the Fourth Circuit

affirmed the ruling of the District Court. In so ruling, the

Fourth Circuit stated:

However thfe] facts [of the first amended

complaint] are characterized, the arrangement

described between the state actors and private

actors does not transform the private actors’

conduct into state action. As distinguished

from Burton, DeBauche’s amended complaint

does not describe facts that suggest

independence such that VCU relied on the

private defendants for its continued viability.

While the state actors, VCU and Trani,

worked with Wilder in the organization and

promotion of the debate, their conduct cannot

be thought to have controlled his conduct to

such an extent that his conduct amounted to a

surrogacy for state action. Moreover, they did

not control the stations which only agreed to

broadcast the debate. More pertinently, when

we apply Andrews to those facts, we conclude

that none of the four circumstances that we

identified in Andrews exists in this case.

DeBauche v. Virginia Commonwealth University, et al, 191

F.3d499, _. A 15-16.”

A motion to dismiss should be granted if it appears to

a certainty that no relief could be granted under any set of

facts which could be proved. However, the court need not

credit a complaint’s bald assertions or legal conclusions

when deciding a motion to dismiss. Morse v. Lower Merion

School District, 132 F. 3d 902 (3d. Cir. 1997).

The case of Hirsch _v. Arthur Anderson, 72 F.3d

1085, 1092, (2d Cir., 1995) held that “conclusory allegations

of the legal status of defendant's acts need not be accepted as

true for the purposes of ruling on a motion to dismiss.” The

Hirsch court went on to analyze the factual allegations and

underpinnings of the claims made and found that the

allegations, despite stated legal conclusions by the claimant

otherwise, were not sufficient to state a cause of action. This

is exactly what both the District Court and the Fourth Circuit

did in this present situation. After a detailed analysis of the

factual allegations and underpinnings of Petitioner’s

Amended Complaint, each of these Courts found that there

was a fundamental flaw in the allegations against Wilder.

Wilder was not, at the time of the conduct complained of in

the Amended Complaint, a state actor and therefore, he could

not, as a matter of law, violate the Petitioner’s constitutional

rights, including those rights described in the Forbes

decision, under which Petitioner stakes her entire claim.

An analysis of Petitioner’s Amended Complaint

reveals that the paragraphs specifically naming Wilder state

only that (1) Wilder was an influential figure in Virginia

politics; (2) Wilder hosted a talk show on a local radio

station; (3) Wilder invited Gilmore and Beyer to discuss

issues on that show; (4) Wilder accepted the invitation of

VCU to conduct a debate between Gilmore and Beyer on

VCU premises; and (5) Wilder failed to return phone calls

2 Andrews v. Federal Home Loan Bank of Atlanta, 998 F.2d 214, 217

(4™ Cir. 1993)

and e-mail messages from DeBauche. (Am. Compl. {J 9, 18,

19, 24(a), 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 37, 46, 47,

48, 49, 50, 82, 83, 84, 94, 95, 96, 97, and 98; A 83,86,96-

96,103-106). Armed only with these sparse factual

allegations, Petitioner then jumps to the legal conclusion that

Wilder acted “jointly” with VCU and all the other

respondents and, in so doing, violated Petitioner’s alleged

constitutional right to participate in Debate Virginia.

The law does not require the District Court or this

Court to accept as true these conclusory legal assertions,

even while accepting the factual allegations as true for the

purposes of notice pleading. Petitioner’s claim against

Wilder fails as a matter of law as is does not make factual

allegations sufficient to support the legal conclusions drawn.

Because Petitioner’s Amended Complaint fails to state any

factual basis for her allegation that Wilder acted “jointly”

with the VCU, the District Court and the Fourth Circuit

rightfully rejected her legal conclusion that Wilder was a

state actor and, thus, could be held liable for any alleged

violation of her civil or constitutional rights.

Ill. AS A PRIVATE PARTY WILDER CANNOT BE

LIABLE FOR A VIOLATION OF

DEBAUCHE’S CONSTITUTIONAL RIGHTS

In the Amended Complaint, Petitioner states a claim

against Wilder in his individual capacity only. Although

reference is made in Petitioner’s brief to Wilder acting in his

capacity as an independent contractor of WRVA and in his

capacity as a Distinguished Professor at VCU, Wilder was

not sued in either capacity.” At the time Petitioner filed the

Amended Complaint, she had all of this information.

Nonetheless, the Complaint and the Amended Complaint are

identical in their statements of the capacity in which Wilder

is sued. The only contention by Petitioner that Wilder was a

state actor is her conclusory allegation that Wilder acted

jointly with all of the defendants, state actors and private

corporations alike, in failing to invite Petitioner to participate

in Debate Virginia and failing to return phone calls and other

purported communications.

This Court has articulated several tests for

establishing state action by a private party. See Lugar v.

Edmondson Oil Co., 457 U.S. 922 ; 102 S.Ct. 2744; 73 L.

Ed. 2d 482(1982). For a private party to be liable under the

“joint action” test, the state must have “so far insinuated

itself into a position of interdependence with the private

party that it was a joint participant in the enterprise”.

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357-58;

95 §. Ct. 449; 42 L.Ed.2d 477 (1974). The state and the

private party must be “intertwined in a ‘symbiotic

relationship’” involving the alleged constitutional violation.

National Broadcasting Co. v. Communications Workers of

Miu YC

3 If the Petitioner is asserting that the actions taken by Wilder were in his

role as a Distinguished Professor of the Center for Public Policy at VCU,

then Wilder is entitled to the broad protections of academic freedoms.

See Sweezy v. New Hampshire, 354 USS. 234, 250; 77 S.Ct. 1203, 1211

(1957) in which the court stated “The essentiality of freedom in the

community of American universities is almost self-evident. No one

should underestimate the vital role in a democracy that is played by those

who guide and train our youth. To impose any strait jacket upon the

intellectual leaders in our colleges and universities would imperil the

future of our Nation.” See also Keyishian v. The Board of Regents of the

University of the State of New York 385 U.S. 589, 87 S.Ct. 675 (1966)

in which the court stated “Our Nation is deeply committed to

safeguarding academic freedom, which is of transcendent value to all of

us and not merely to the teachers concemed.” ’

America, 860 F.2d 1022, 1027 (11 Cir. 1988) (quoting

Jackson, 419 U.S. at 357).

As stated above, the Fourth Circuit found that Trani,’

could not be thought, based upon the factual allegations of

Petitioner’s 100-plus paragraph Amended Complaint, to

have controlled Wilder’s conduct to such an extent that his

actions amounted to a surrogacy for state action. It is this

level of control which is required before a party can bring an

action against an otherwise private party for violation of

Constitutional and Civil Rights.

The Fourth Circuit has held that where there is no

“ongoing management and control” of a public facility used

by a private party for a one-time event, such “intertwining”

will rarely, if ever, be found. UAW, LOCAL 5285 v. Gaston

Festivals, 43 F.3d 902, 908 (4" Cir. 1995) (quoting Evans v.

Newton, 382 U.S. 296, 301 (1966) ) (no state action involved

in one-day use of public property for local festival).

Petitioner does not point out a conflict in the circuits on this

issue. Accordingly, there is no basis for granting the writ.

In the case of Andrews v. Federal Home Loan Bank

of Atlanta, 998 F.2d 214, 217 (4" Cir. 1993), the Fourth

Circuit articulated a test by which it can be determined

whether a private party can be a state actor. The court found

that a private party may be held liable for violations of

Constitutional and Civil Rights in only four contexts: (1)

when the state coerced the private actor to commit acts that

would be unconstitutional if done by the state; (2) when the

state has sought to evade a clear constitutional duty through

delegation to a private actor; (3) when the state has delegated

a traditionally and exclusively public function to a private

actor; and (4) when the state has committed an

unconstitutional act in the course of enforcing a right of a

private citizen. The Fourth Circuit having specifically

considered the possible applicability of each of these four

* Petitioner has not appealed the District Court’s ruling dismissing VCU

from this action.

situations rejected the Petitioner’s position that Wilder’s

conduct rises to the level of state action allowing her to state

a claim against him for the violation of her Constitutional

rights.

The allegation that a party is a state actor is a legal

conclusion, which a court is not bound to accept in ruling on

4 motion to dismiss. . See Flagg Bros. v. Drash, 436 U.S.

149; 98 S.Ct. 1729; 56 L. Ed. 2d 185 ; (1978) (in which the

Court upheld a district court's dismissal of an action under

Rule 12 (b)(6) for failure to state a claim of state action);

Koltz v. Bezmen, 822 F. Supp. 114, 117 (E.D.N.Y. 1993)

(granting motion to dismiss complaint against private party

because only allegations of collaboration with _ state

defendant were “conclusory” vague or general”); _Carter_v.

Norfolk Community Hospital Assoc., Inc., 761 F.2d 970 (4

Cir. 1985) (granting motion to dismiss where private party’s

conduct did not involve state action). A court may find state

action only where there are sufficient specific allegations of

fact to permit it to reach that conclusion for itself. Petitioner

has failed, even after amending her initial Complaint with a

100- page plus appendix to the Amended Complaint, to

substantiate such an allegation.

It is self-evident that “the constitutional guarantee of

free speech is a guarantee only against abridgment by

government”. Hudgens v. NLRB, 424 U.S. 507, 513 (1976);

Watts-Mean v. Prince George’s Family Crisis Center, 7 F.3d

40 (4 Cir. 1993). The lines drawn by state action “permit

citizens to structure their private relations as they choose

subject only to the constraints of statutory or decisional law”.

Edmondson v. Leesville Concrete Co.. Inc., 500 U.S. 614,

619 (1991). Neither free speech nor equal protection erect a

shield against merely private conduct. Shelley v. Kraemer,

334 U.S. 1, 13 (1948). “Careful adherence to the state action

requirement preserves an area of individual freedom by

limiting the reach of federal law and avoids the imposition of

responsibility on a State for conduct it could not control.

National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S.

10

180, 191 (quoting Lugar v. Edmondson Oil Co., 457 U.S.

922 at 936-937).

Wilder did not decide not to include Petitioner in

Debate Virginia. The participants in Debate Virginia were

determined months before Petitioner was ballot qualified.

There are no factual allegations that any of the sate actors

named here, or any other state actor, controlled Wilder’s

conduct such that his actions amounted to a surrogacy for

state action or that the state actors insinuated themselves

with Wilder’s decision as to who would be invited to Debate

Virginia. The only allegation that Wilder was in any way a

“state actor” is the conclusion that he acted jointly with all of

the other defendants, including VCU, each purportedly a

state actor for the purposes of Petitioner’s claims.

A. If Wilder Is Not A State Actor, He Cannot Be

Liable for Violation of DeBauche’s

Constitutional Rights

The First Amendment does not require speakers who

use public property to include in their expressive activities

the messages of others. Hurley _v. Irish-American Gay,

Lesbian and Bisexual Group, 515 U.S. 557 (1995); Sistrunk

v. City of Strongville, 99 F.3d 194 (6" Cir. 1996), cert

denied, 117 S. Ct. 2409 (1997); United Auto Workers v.

Gatson Festivals Inc., 43 F.3d 902 (4" Cir 1995). In the

claims against Wilder, the Petitioner is seeking to force

Wilder, because he used public property, to associate with

Petitioner against his will.

Although the First Amendment guarantees access to

public facilities previously designated for expressive

activities, it also states that access shall not be denied

because the state disagrees with the viewpoint of any speaker

or message. In this case, Petitioner was offered equal access

to VCU’s Performing Arts Center and was offered the same

resources that VCU made available to Wilder and Debate

Virginia. (JA100-102). Petitioner declined this offer,

11

insisting that the entire Debate Virginia be re-created for her

benefit. It is evident from the nature of this demand that

Petitioner sought something far more accommodating than

mere nondiscriminatory access to public facilities. Rather,

Petitioner sought the right to confront and

contemporaneously express her message and to thereby

dilute the message of her competitors in the political

marketplace of ideas and, further, to force Wilder, a private

citizen, to include her message in his presentation.

Petitioner argues that including her in Debate

Virginia would have better informed the electorate about its

choices; however, an “audience edification test” does not

pre-empt the First Amendment nor is “good cause” or “right

of reply” a justification for encroachments on private

expression. This Court in Forbes did not recognize such a

test. Essentially, Petitioner is inviting this Court to carve out

a “political debate” exception to Hurley. But political

debates are not unlike other kinds of meetings, social

gatherings, educational programs or symposia. Debates are

simply a formal opportunity for the exchange of ideas. The

fact that speakers in a debate may be highly visible or

influential individuals does not alter the governing principles

of the First Amendment. Politicians seeking public office

and private citizens who arrange debates between candidates

for public office should not receive diminished First

Amendment rights simply because they use public facilities

to facilitate such dialogue. Citizens may use university

resources to facilitate their own “political parade”, yet at the

same time, maintain the integrity and clarity of their message

and associations. As long as the state permits others to

“have their parade” as well, the First Amendment is not

offended.

The fact that Petitioner was offered an opportunity to

use the same state facilities and resources offered to her

competitors, yet could not galvanize any significant popular

support even after such resources were made available to

her, amply demonstrates that she seeks to draw upon Wilder

12

“as tt iin Meo del ee Gk te a. ee te ail a Sle. "

and her opponents’ visibility to enhance, rather than merely

to convey, her message. This “positive associational glow”

was precisely what animated the bisexual coalition to seek

access to the traditionalist veterans’ parade in Boston. The

gay rights activists in Hurley, like the Petitioner, sought to be

positively associated with the populist message of the Irish

parade and to broaden that message within the same

expressive medium. That may be a laudable intention, but

constitutionally, state intervention to alter another’s

expression to render that message more acceptable is a

“decidedly fatal objective”. Hurley, 515 U.S. at 562, 115

S. Ct. at 2350.

B. Only if Wilder Was Acting As A Public

Broadcaster As Defined in the Forbes

Decision, Could He Be Held Liable for

Violation of DeBauche’s Constitutional

Rights

There is no allegation in Petitioner’s pleadings or

assertions in her briefs that Wilder was associated with

CVETC, the public broadcaster in this action. However, in

the arena of “public” broadcasting, this Court addressed this

issue in Forbes. In its decision, this Court held that the public

television station’s viewpoint-neutral decision to not allow a

| “marginal” candidate to appear on a televised debate passed

constitutional muster. This Court went on to discuss the

distinction between private and public broadcasters with

regard to access. Justice Kennedy, writing on behalf of the

majority, stated:

As a general rule, the nature of editorial

discretion counsels against subjecting

broadcasters to claims of viewpoint

discrimination. Programming decisions

would be particularly vulnerable to claims of

this type because even principled exclusions

rooted in sound journalistic judgment can

often be characterized as view-point based. . .

Much like a umiversity selecting a

commencement speaker, a public institution

selecting speakers for a lecture series, or a

public school prescribing its cirrocumuli, a

broadcaster by its nature will facilitate the

expression of some viewpoint instead of

others. Were the judiciary to require, and so

to define and approve, pre-established criteria

for access, it would risk implicating the courts

in judgments that should be left to the

exercise of journalistic discretion.

Id. at p. 1639.

This is exactly what Petitioner is asking this Court to

do. If Wilder was acting jointly with WRVA, a private

broadcasting entity, he cannot be held to a higher

constitutional standard than that entity. The only way, under

Forbes that Wilder could be held liable for the violation of

Petitioner’s constitutional rights was to be acting as a public

broadcaster, under the scenario envisioned by Forbes. This

was not the case, is not the case and was not pleaded as being

the case. As such, Wilder cannot be liable for the viewpoint

discrimination with which the Petitioner charges him and the

lower Courts are correct in their evaluation of Petitioner’s

amended complaint.

C. The Utter Lack of Legal Support for

DeBauche’s Claims Against Wilder Warrants

Payment of Attorneys’ Fees and the Decision

of the Fourth Circuit to Remand that Issue to

the District Court Should be Upheld

Title 42 U.S.C. §1988 states that in a §1983 action,

the court in its discretion, may allow the prevailing party...a

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reasonable attorney’s fee as part of the costs”. Citing

Christiansburg _Garment__Co. _v. Equal _ Employment

Opportunity Comm’n, 434 U.S. 412, 421 (1978), the District

Court construed §1988 to mean that a defendant is entitled to

a fee award where the action is “frivolous, unreasonable, or

without foundation, even though not brought in subjective

bad faith”.

The lower courts determined that Wilder alone

decided to invite only Gilmore and Beyer. The lower courts

further determined that Wilder had a First Amendment right

to do so and not include Petitioner in Debate Virginia even if

the debate occurred on the grounds of a state university.

Wilder did not seek a ruling that the attorneys’ fees to which

he is entitled under 42 U.S.C. § 1988 should be imposed

against the Petitioner’s counsel. Thus, Wilder did not take a

position in the Fourth Circuit Court of Appeals nor does he

take position in this Court as to whether the fees should be

awarded jointly and severally against Petitioner and her pro

bono counsel.

Petitioner argues that discovery and a trial should be

held in order to determine whether her case is unreasonable

or without foundation. However, further discovery by

Petitioner cannot elevate her case above the pleadings set

forth in her Amended Complaint. Petitioner admits that

Wilder acted as a private individual in inviting Beyer and

Gilmore to participate in Debate Virginia. Moreover, the

lower Courts correctly found that Petitioner failed to allege

facts sufficient to demonstrate that Wilder was a state actor.

Permitting Petitioner further discovery and a trial cannot

cure the deficiencies of Petitioner’s Amended Complaint.

The only result of additional discovery and trial is the

needless increase to the defendants in attorneys’ fees and

costs of which Petitioner already complains to be

unreasonable.

The issue before this Court is not whether Petitioner

can bring a claim of viewpoint discrimination but whether

both lower courts were correct in its ruling that she failed to

15

allege properly a case of viewpoint discrimination, even after

the opportunity to amend the complaint was taken

subsequent to obtaining campaign documents. Insofar as

Petitioner failed to set forth a reasonable claim against any of

the defendants and to the extent she seeks to intrude upon

Wilder’s First Amendment rights, she should be responsible

for Wilder’s attorneys’ fees and costs.”

CONCLUSION

Respondent Lawrence Douglas Wilder respectfully

requests that this Court deny Petitioner’s request for a Writ

of Certiorari and that this matter be remanded to the District

Court on the issue of attorneys’ fee for findings consistent

with the ruling of the Fourth Circuit Court of Appeals.

Respectfully submitted

Roger L. Gregory

Counsel of Record

Lawrence D. Wilder, Jr.

Laura M. Hillenbrand

Wilder & Gregory

707 E. Main Street, Suite 1000

Richmond, Virginia 23219

(804) 643-8401

5 The Petitioner alleges that Wilder is not entitled to attorneys fees under

42 USC § 1988 because she was unaware of Wilder’s motion. to dismiss

or in the alternative for summary judgment. However, this issue was

raised by the Petitioner at the appellate level and rejected.

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