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Seum v. Osborne

United States District Court, E.D. Kentucky, Central Division, Frankfort

September 28, 2018

DAN SEUM, JR., Plaintiff,
DAVID OSBORNE, in his official capacity as Acting Speaker of the Kentucky House of Representatives and Co-Chairman of the Legislative Research Commission, [1] and DAVID BYERMAN, in his official capacity as Director of the Legislative Research Commission, Defendants.



         This matter is before the Court on Defendants' Motion to Dismiss for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and insufficient service of process / lack of personal jurisdiction. [R. 10.] For the reasons that follow, Defendants' Motion to Dismiss will be DENIED in part and GRANTED in part.


         Plaintiff Dan Seum, Jr., a resident of Kentucky, is a citizen advocate and was once the Director of Veteran's Affairs at Kentucky for Medicinal Marijuana (Ky4MM), “a non-profit organization working to legalize medicinal use of cannabis in Kentucky.” [R. 1 at 1.] He states that on February 17, 2017, he was engaged in conversation with other visitors and advocates on the third floor of the Capitol Annex when he, in context, quoted a racially charged statement accredited to a former head of a federal law enforcement agency. [Id. at 4.] Approximately two weeks later, Seum received a letter from Defendant Byerman advising Seum that, at the direction of Defendant Hoover, Seum was permanently banned from the third floor of the Capitol Annex due to offensive comments Seum made in front of employees of the Legislative Research Commission (LRC). [Id. at 6. See also R. 1-1 at 1.]

         Seum brings this 42 U.S.C. § 1983 action alleging violations of his constitutional rights under the First and Fourteenth Amendments of the United States Constitution and Sections One and Two of the Kentucky Constitution. [See generally R. 1.] His four claims include a violation of his right to petition and access, a violation of his right to freedom of speech, First Amendment retaliation, and a violation of his due process rights. [Id.] Seum claims that when Defendants Hoover and Byerman, acting in their official capacities, unilaterally and arbitrarily banned Seum from the third floor of the Capitol Annex, they infringed upon Seum's rights to freedom of speech and to petition state lawmakers. [Id. at 2, 10.] Further, Seum alleges the permanent ban served as retaliation for the content of his speech and was “designed to intimidate the free exercise of Plaintiff's rights.” [Id. at 11.] Lastly, Seum argues that the ban, which was imposed arbitrarily and maliciously, violated both his substantive and procedural due process rights because the ban came without either prior notice and an opportunity to be heard on the allegations or any means of review, redress, or appeal. [Id. at 7, 11-12.]

         At all relevant times, Defendant Jeff Hoover was the Speaker of the Kentucky House of Representatives and, in that capacity, served as co-chairman of the LRC. See KRS 7.090(2). Defendant David Byerman served as the LRC Director. According to state law, the LRC is an “independent agency in the legislative branch of state government, which is exempt from control by the executive branch and from reorganization by the Governor. The Commission shall have the duties, responsibilities, and powers assigned to it or authorized it by the General Assembly, by statute, or otherwise.” KRS § 7.090(1).

         Defendants do not contest that they banned Plaintiff from the third floor of the Capitol Annex, but state the action was taken following an investigation that substantiated an LRC employee's complaint about Seum's comments. [R. 10-1 at 5.] According to Defendants, “the investigation determined that one or more LRC employees found Plaintiff's use of racially charged language in their private workplace to be inappropriate and offensive conduct related to an individual's race and / or ethnicity.” [Id.] Defendants state the sanction was imposed “to avoid any potential future harassment of the LRC's employees by the Plaintiff.” [Id.]

         Defendants move the Court to dismiss the case on a myriad of theories. First, Defendants seek dismissal under Fed.R.Civ.P. 12(b)(1) arguing the Court lacks subject matter jurisdiction because: (1) Seum lacks standing to bring this suit; (2) this case presents a nonjusticiable political question; (3) sovereign immunity protects Defendants; (4) legislative immunity protects Defendants; and (5) the Noerr-Pennington Doctrine bars Seum's claims. [R. 10-1 at 7-24.] Next, Defendants argue this case should be dismissed, pursuant to Fed.R.Civ.P. 12(b)(6), because Seum fails to state a claim for which relief can be granted. [Id. at 24-36.] Lastly, pursuant to Fed.R.Civ.P. 12(b)(2) and (5), Defendant's maintain they have not been properly served and, therefore, the Court does not have personal jurisdiction over the Defendants. [Id. at 36-40.] The matter has been fully briefed and is now ripe for review.



         Motions to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) come in two varieties: a facial attack or a factual attack. Gentek Bldg. Prods., Inc., v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack “questions merely the sufficiency of the pleading.” Id. When a motion raises a facial attack, the Court must accept all the “allegations in the complaint as true, ” and “if those allegations establish federal claims, jurisdiction exists.” Id. On the other hand, a factual attack is “not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). When the 12(b)(1) motion factually attacks subject matter jurisdiction, “no presumptive truthfulness applies to the allegations, ” and the court “must weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or does not exist.” Gentek Bldg. Prods., Inc., 491 F.3d at 330. All of Defendants' 12(b)(1) arguments are properly analyzed below as facial attacks on subject matter jurisdiction.


         Defendant's first challenge Seum's Article III standing, which is a facial attack on subject matter jurisdiction. See Gaylor v. Hamilton Crossing CMBS, 582 Fed.Appx. 576, 579 (6th Cir. 2014). “Standing is a threshold question in every federal case.” Coal Operators & Assocs., Inc. v. Babbitt, 291 F.3d 912, 915 (6th Cir. 2002) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Article III's “irreducible constitutional minimum” of standing has three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The plaintiff must: (1) have suffered “an ‘injury-in-fact' - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual an imminent, not conjectural and hypothetical;” (2) show that the injury is “fairly traceable to the challenged action of the defendant;” and (3) show that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” White v. United States, 601 F.3d 545, 551 (6th Cir. 2010) (quoting Lujan, 504 U.S. at 560-61). “The party invoking federal jurisdiction bears the burden of establishing these three elements.” Lujan, 504 U.S. at 561.

         Seum sufficiently pleads facts - taken in the light most favorable to him - that satisfies the mandates of Article III standing. First, Seum alleges an injury in fact that is both concrete and particularized as well as actual and imminent. Seum charges, and Defendants concede, that Seum was permanently banned from the third floor of the Capitol Annex. [See generally R. 1; R. 10-1 at 5.] This banishment, according to Seum, invaded his constitutionally protected First Amendment rights. [R. 1 at 9-10.] Next, Seum has shown that the banishment is directly tied to the acts of Defendants and, in fact, Seum attached his banishment letter to his Complaint. [R. 1-1.] Lastly, Seum argues that his injury would be redressed by a favorable ruling. [R. 15 at 11 (“The declaratory and injunctive relief sought from this Court would remove the ban and therefore redress Seum's injury.”).] Because the threshold question of standing presents a facial attack on subject matter jurisdiction and, as such, the Court accepts all allegations in the Complaint as true, the Court finds Seum has meet the requirements to establish standing.


         Defendants next argue that the Court lacks subject matter jurisdiction because this case presents a nonjusticiable political question. [R. 10-1 at 11-14.] Defendants seem to argue that Seum's banishment is a product of its legislatively enacted House Rule 72, which “restricted access to the private office space on the third floor of the Capitol Annex to members, employees, and authorized guests.” [Id. at 13.] However, Seum avers that House Rule 72 does not mandate banishment, and “the fact that Kentucky's House of Representatives decides to restrict access to its legislators and apply that restriction on an individual ad hoc basis, without process and based on a vague standard of conduct, ” does not present a nonjusticiable political question. [R. 15 at 12.]

         A nonjusticiable political question is presented when one of the following is “inextricable from the case”:

(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) or a lack of judicially discoverable and manageable standards for resolving it; (3) or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) or an unusual need for unquestioning adherence to a political decision already made; (6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962). Importantly, Seum does not challenge the constitutionality or enactment of House Rule 72 or House Resolution 2; Seum simply challenges the imposition of an unequivocal and permanent ban. Thus, the Court is not asked to consider the constitutionality of these legislative Rules. For that reason, the instant case does not present a nonjusticiable political question.

         Defendants cite as support Consumers Union of U.S., Inc. v. Periodical Correspondents' Ass'n, 515 F.2d 1341 (D.C. Cir. 1975), which, even if analogous, is nonbinding on the Court. Consumers Union, though, is distinguishable from the facts presented here. In Consumers Union, a consumer's organization sought accreditation for its publication from the Periodical Correspondents' Association, which would have granted the publication and its correspondents membership to the Periodical Press Galleries of the Congress. See Consumers Union, 515 F.2d at 1342. Access or denial of membership and accreditation was within the authority of the Executive Committee of the Association. Id. “Regulations governing the management of the galleries . . . are promulgated by Congress, which retains the right of final approval of applications for admissions to the galleries.” Id. at 1344. The House and Senate alike enacted numerous rules governing accreditation and access to its galleries. Id. Ultimately, Consumers Union was denied accreditation by the Association's Executive Committee, which restricted Consumers Union's access to the galleries. See generally Id. Consumers Union challenged this decision, and the United States Court of Appeals for the District of Columbia Circuit held,

The accreditation policy here did not place the appellee in any less advantageous position than the public or the press generally; limitations were based upon distinctions applied to [Consumers Union] and others in similar situations; [Periodical Correspondents' Association] . . . were agents acting within the sphere of legitimate legislative activity; beyond declining to accredit Consumer Reports, none of the appellants took any action or enforced any orders against appellee, and the internal rules involved constituted a demonstrable constitutional commitment to the legislative branch of government.

Id. at 1346-47.

         Here, Seum was not seeking membership to an association that would have granted him access to certain areas of the Capitol Annex. Indeed, the facts of the Complaint support a finding that Seum, on numerous occasions, had been granted access to the third floor of the Capitol Annex without belonging to any exclusive association. Consumers Union challenged the constitutionality of the Rules Governing Periodical Press Galleries. See id. at 1346. Seum, however, does not ...

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