240 F.3d 404 (4th Cir.

2001)

DAVID LYTLE; JEANETTE LYTLE; JOAN MAGUIRE,

Plaintiffs-Appellees,
v.
CHARLES D. GRIFFITH, JR., in his official capacity as
Norfolk Commonwealth Attorney; HONORABLE JAMES S.
GILMORE, III, in his official capacity as Governor of the
Commonwealth of Virginia, Defendants-Appellants,
and
CHARLES R. BREWER, Individually and in his official
capacity as Lieutenant of the Norfolk Police Department,
Defendant.
No. 99-2609.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH

CIRCUIT.
Argued: September 29, 2000.
Decided: February 16, 2001.

Appeal from the United States District Court for the Eastern District of
Virginia, at Norfolk.
Jerome B. Friedman, District Judge. (CA-99-1366-2)COUNSEL:
ARGUED: William Henry Hurd, Solicitor General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellants. Michael
Joseph DePrimo, AMERICAN FAMILY ASSOCIATION CENTER FOR
LAW AND POLICY, Tupelo, Mississippi, for Appellees. ON BRIEF:
Mark L. Earley, Attorney General of Virginia, Judith Williams Jadgmann,
Deputy Attorney General, Gregory E. Lucyk, Senior Assistant Attorney
General, Kevin O. Barnard, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellants.
Stephen M. Crampton, Brian Fahling, AMERICAN FAMILY
ASSOCIATION CENTER FOR LAW AND POLICY, Tupelo,
Mississippi, for Appellees.
Before WILKINSON, Chief Judge, and MICHAEL and KING, Circuit

Judges.
Remanded by published opinion. Judge King wrote the majority opinion,
in which Judge Michael joined. Chief Judge Wilkinson wrote a dissenting
opinion.
OPINION
KING, Circuit Judge:

This appeal relates to whether James S. Gilmore, III, the Governor of the
Commonwealth of Virginia (the "Governor"), is protected by the Eleventh
Amendment from suit in the underlying action -an issue the Governor failed to
raise in the district court prior to this appeal. In the underlying case, the district
court granted a preliminary injunction barring enforcement of Virginia Code
section 46.2-930, which prohibits loitering on designated bridges. See Order
and Opinion of November 2, 1999 ("Order"); Order of June 1, 2000
("Modifying Order").

The Governor and his fellow defendant, Charles D. Griffith, Jr., the
Commonwealth's Attorney for the City of Norfolk ("Griffith"), do not seek to
overturn the injunction on its merits. Rather, the Governor asserts that he lacks
a sufficient connection to enforcement of the challenged statute and, thus,
cannot be made a party to this action pursuant to the exception to sovereign
immunity found in Ex parte Young, 209 U.S. 123, 159-60 (1908) (permitting
federal actions against appropriate state officers for prospective relief from
continuing violations of federal law). Although we possess jurisdiction, we
remand in order for the district court to consider the issue in the first instance.
I.
A.

Enacted in 1966 and last amended in 1989, the challenged statute provides, in
its entirety:

Pedestrians shall not loiter on any bridge on which the Commonwealth

Transportation Commissioner has posted signs prohibiting such action. Any
person violating the provisions of this section shall be guilty of a traffic
infraction.

Va. Code Ann. S 46.2-930 (Michie's 1998 & Supp. 2000). The maximum
penalty for violating the statute is a fine of two hundred dollars. See Va. Code
Ann. S 46.2-113 (Michie's 1998). For purposes of arrest, traffic infractions are
treated as misdemeanors. See Va. Code Ann. S 46.2-937 (Michie's 1998).
Otherwise, traffic infractions are "violations of public order . . . and not deemed
to be criminal in nature." Va. Code Ann. S 18.2-8 (Michie's 1996 & Supp.
2000).

The powers of the Governor are set forth in article V of the Constitution of
Virginia and in the Virginia Code. The Governor is the chief executive officer
of the Commonwealth of Virginia (the "Commonwealth"). See Va. Const. art.
V, S 1. He must "take care that the laws be faithfully executed." Va. Const. art.
V, S 7. He appoints the Superintendent of State Police, see Va. Code Ann.S 522 (Michie's 1998), and he is the commander-in-chief of the Commonwealth's
armed forces, see Va. Code Ann. S 44-8 (Michie's 1999). The Governor has the
authority to summon law enforcement agencies to suppress riots and preserve
the peace when local efforts prove insufficient. See Va. Code Ann. S 18.2-410
(Michie's 1996). He also has the power to request criminal prosecutions by the
Attorney General, see Va. Code Ann. S 2.1-124 (Michie's 1995 & Supp. 2000).
B.

The plaintiffs, David Lytle, Jeanette Lytle, and Joan Maguire (collectively, the
"Lytles"), filed this action under 42 U.S.C. S 1983 seeking to enjoin
enforcement of section 46.2-930 on the ground that the Virginia statute
unlawfully abridges First and Fourteenth Amendment rights.1 The Lytles are
anti-abortion protesters who, on July 16, 1999, faced arrest pursuant to section
46.2-930 during a demonstration on the Picadilly Overpass, a pedestrian bridge
crossing Interstate 64 in the City of Norfolk (the "City"). The Lytles displayed
large placards from the bridge -which bore a no-loitering sign-to passing
motorists on the interstate highway below. Some forty-five minutes into the
demonstration, police arrived and warned the Lytles and fellow protesters that
they would be arrested unless they ceased their activities. The Lytles left the
overpass after observing the arrests of two of their confederates. It was later
discovered that despite the noloitering sign, the overpass had not been
designated by the Commonwealth Transportation Commissioner (the
"Commissioner") under the provision of section 46.2-930.
C.

Following their encounter with police, the Lytles received assurances from

representatives of the Commonwealth and the City that enforcement of section

46.2-930 would be -at least temporarily -suspended, and charges were
dismissed against the two protesters who had been arrested. Unappeased, the
Lytles filed their action in the district court and immediately moved for a
preliminary injunction. The district court heard arguments on their motion on
October 7, 1999, and, the following day, received additional written assurances
from the Governor and Griffith regarding the Commonwealth's enforcement of
the statute. Being "unpersuaded that the defendants' assurances adequately
protect the constitutional rights of the plaintiffs[,]" the court granted the
preliminary injunction. See Order, at 6, 24. The injunction prohibits
enforcement of section 46.2-930, bars further designation of any bridges under
the statute, directs immediate covering or removal of existing no-loitering
signs, and orders "whatever steps are necessary and appropriate to notify local
law enforcement within the Commonwealth regarding the substance of this
Order[.]" Id. at 24.
9

The Governor and Griffith filed a notice of appeal on December 3, 1999. On

appeal, they alleged for the first time that: (1) the injunction violated the
principles of sovereign immunity because, by its express language, it enjoined
"the Commonwealth" directly;2 (2) sovereign immunity protects the Governor
from this action; and (3) because the Governor should be dismissed as a party,
the scope of the injunction should be limited to the City.3

10

After filing their notice of appeal on December 3, 1999, the Governor and
Griffith finally raised the sovereign immunity issues in the district court, in a
December 14, 1999 motion to dismiss the Governor and to modify the Order.
They also requested a stay of the preliminary injunction pending appeal.
However, according to the district court, these motions were neither scheduled
for hearing by counsel nor referred to the court for a decision on the briefs.
Then, on March 30, 2000, the Governor and Griffith filed a second motion to
dismiss, again raising many of these same issues in the district court. This
motion, unlike the earlier motions, was scheduled for hearing. The court, "[i]n
the interest of efficiency, judicial economy, and to clear any confusion in the
record of this case," chose to discuss each of the pending motions. See
Modifying Order, at 2. However, after reviewing relevant authorities regarding
the Governor's sovereign immunity defense, the court deferred ruling on the
motion to dismiss pending disposition of this appeal. See id. at 2-9, 12. The
court also clarified the language of its earlier Order, see id. at 12; supra note 2,
and denied the motion for a stay of the injunction pending appeal, see
Modifying Order, at 12.
II.

11

We possess jurisdiction, pursuant to 28 U.S.C. S 1292(a)(1), to hear appeals

from orders granting injunctions. Moreover, although the ground for appeal in
this case -sovereign immunity -was not raised in the district court, we
nonetheless possess jurisdiction to determine the matter. See Suarez Corp.
Indus. v. McGraw, 125 F.3d 222, 227 (4th Cir. 1997) (recognizing that a court
may consider the issue of Eleventh Amendment immunity, because of its
jurisdictional nature, at any time).
III.
A.

12

The Eleventh Amendment provides that "[t]he 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, or
by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Although
the Eleventh Amendment, by its terms, applies only to suits brought against a
state by "Citizens of another State," it is well established that"an unconsenting
State is immune from suits brought in federal courts by her own citizens as well
as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 663 (1974)
(citations omitted). State officers acting in their official capacity are also
entitled to Eleventh Amendment protection, because "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." Will v. Michigan Dep't of State Police,
491 U.S. 58, 71 (1989) (citations omitted).

13

A well-recognized exception to this rule is found, however, in Ex parte Young,

209 U.S. 123 (1908), which allows suits against state officers for prospective
equitable relief from ongoing violations of federal law. See Idaho v. Coeur
d'Alene Tribe , 521 U.S. 261, 269 (1997) ("We do not . . . question the
continuing validity of the Ex parte Young doctrine."). In Ex parte Young, the
Supreme Court began with the premise that states are incapable of authorizing
unconstitutional conduct, and created the fiction that a state officer engaging in
unconstitutional conduct is no longer acting as a state agent -and, thus, is no
longer protected by the Eleventh Amendment. See 209 U.S. at 159-60. As to
identifying proper defendants, the Court held that

14

[i]n making an officer of the State a party defendant in a suit to enjoin the
enforcement of an act alleged to be unconstitutional it is plain that such officer
must have some connection with the enforcement of the act, or else it is merely
making him a party as a representative of the State, and thereby attempting to

make the State a party.

15

Id. at 157 (emphasis added). The Court further instructed that "[t]he fact that
the state officer by virtue of his office has some connection with the
enforcement of the act is the important and material fact, . . . whether it arises
out of the general law, or is specially created by the act itself[.]" Id.
B.

16

In this case, the Lytles assert that the Governor has a sufficient connection
under Ex parte Young to the enforcement of section 46.2-930 because he has a
duty to "take care that the laws be faithfully executed," Va. Const. art. V, S 7;
he is the chief executive officer of the state, see id. art. V, S 1; he is the
commander-in-chief of the Commonwealth's armed forces, see Va. Code Ann.S
44-8; he has authority to order state and local law enforcement agencies to
preserve the peace, see id. S 18.2-410; and he appoints the Superintendent of
Police, see id. S 52-2. Additionally, they argue that because their fellow
protesters "were arrested, handcuffed, and taken into custody for purportedly
violating the loitering statute[,] . . . the offense must be deemed criminal in
nature[.]" Brief of Appellees, at 14 n.7 (emphasis in original). Thus, the Lytles
reason, the Governor has the power, pursuant to Virginia Code section 2.1-124,
to request the Attorney General to prosecute violations of section 46.2-930.

17

The Governor, on the other hand, asserts that a violation of the statute is a noncriminal traffic infraction that does not implicate his authority to seek
prosecutions by the Attorney General. He also rejects the purported
connections between the gubernatorial powers cited by the Lytles and
enforcement of the anti-loitering statute. The Governor argues that the Lytles
are left with his general duty to "take care that the laws be faithfully executed,"
Va. Const. art. V, S 7, which is simply not sufficient to merit an exception to
sovereign immunity. Moreover, the Governor asserts that "it is difficult, if not
impossible, to imagine the Governor using the power of his office to enforce
the act -a traffic violation." Reply Brief of Appellants, at 9.

18

In addition to these factual and legal disputes, the Governor and Griffith assert
that rather than choosing the Governor as a defendant, the Lytles should have
either sued the Commissioner, or brought their case as a class action naming
one or more Commonwealth's Attorneys as class representatives, see, e.g.,
Virginia Soc'y for Human Life, Inc. v. Caldwell, 152 F.3d 268 (4th Cir. 1998).
The Lytles counter that the only relevant duty of the Commissioner with regard
to section 46.2-930 is determining where to post anti-loitering signs, and he has

no authority over state and local law enforcement agencies. Further, although
they perhaps could have sued Commonwealth's Attorneys as class
representatives, they instead, "as masters of their complaint, . . . appropriately
chose to sue the chief executive officer of the state, Governor Gilmore[.]" Brief
of Appellees, at 29.4
C.
19

Although we possess jurisdiction to decide the sovereign immunity issue, see

supra Part II, we also have the discretion to decline to do so until the district
court has had the opportunity to consider the matter. Where "`[t]he District
Court is in the best position to address in the first instance the competing
questions of fact and state law necessary to resolve the [E]leventh
[A]mendment issue,' . . . we remand for that purpose." Keller v. Prince
George's County, 827 F.2d 952, 964 (4th Cir. 1987) (quoting Patsy v. Board of
Regents, 457 U.S. 496, 516 n.19 (1982)); accord Gray v. Laws, 51 F.3d 426,
434 (4th Cir. 1995); Roberts v. College of the Desert, 870 F.2d 1411, 1415 (9th
Cir. 1989) ("We decline to decide this [Eleventh Amendment] question,
believing that it is one for the district court to determine in the first instance,
coincident with the development of an appropriate factual record.").

20

In Keller, we were presented with an Eleventh Amendment argument that

rested on whether a county social services department was an arm of the state
government. See 827 F.2d at 964. We remanded the case to the district court to
develop a record on the issue and perhaps "resolve some of the [E]leventh
[A]mendment difficulties in this case by permitting amendments to the
pleadings." Id. Facing a similar question in Gray, we remanded for the district
court to reconsider the sovereign immunity issue in light of intervening
Supreme Court precedent. See 51 F.3d at 430, 434. Citing Keller, we noted that
it was "especially true" that the district court was in the best position to address
the issue in the first instance, "given the barrenness of the record." Id. at 434.

21

The sovereign immunity issue raised by the Governor encompasses two

significant questions: (1) What is the Governor's connection, if any, to the
enforcement of the challenged anti-loitering statute? and (2) If there is a
connection, is it sufficient to implicate the exception to sovereign immunity
found in Ex parte Young ? The first question, at least, requires a determination
of disputed questions of fact and state law -and we have been provided with an
incomplete record on which to address these questions, even if we were
mandated to do so.

22

By remanding, we enable the district court to handle this case in the normal and

22

By remanding, we enable the district court to handle this case in the normal and
most orderly fashion, and we permit it to address in the first instance the
relevant questions of fact and state law. Moreover, in light of the disagreement
over the naming of appropriate defendants, the district court may consider
permitting amendments to the pleadings to resolve any Eleventh Amendment
difficulties in this case. Such a remand would not, apparently, be unwelcome by
the district court. In staying the motion to dismiss the Governor pending our
decision, Judge Friedman commented:

23

The Court understands and agrees that the claim for immunity is not waived if
not argued before the District Court. However, the Court questions the
defendant's tactic and use of judicial resources in pursuing an appeal of a
preliminary injunction on a jurisdictional issue without first addressing the
question at the District Court level.

24

Modifying Order, at 3. We note also that, although the district court deferred
ruling on sovereign immunity, the court had first researched and discussed the
applicable authorities on this question. Because we conclude that the district
court should have the opportunity to address this issue in the first instance, we
are constrained to remand.5

REMANDED

Notes:
1

Additionally, the Lytles seek a declaratory judgment that the statute is

unconstitutional, and nominal damages from the City of Norfolk (the "City").
They also requested nominal and punitive damages from Charles Brewer, a
lieutenant of the Norfolk Police Department, but he was dismissed as a party on
December 15, 1999. According to the briefs filed in this court, the district court
thereafter granted leave to the Lytles to file an amended complaint naming the
City as a defendant.

This issue -naming of "the Commonwealth" directly -was rendered moot,

however, when the district court modified the injunction to replace dubious
references to "the Commonwealth" with the names of the Governor and
Griffith. See Modifying Order, at 12. The court explained that it had used the
term "the Commonwealth" to refer to the Governor and Griffith throughout its
earlier opinion on the motion for preliminary injunction, and had mistakenly
carried over that shorthand reference into the injunction order. See id. at 9. "
[T]he Commonwealth," the district court clarified, "is not a defendant in this
matter, and the Court should have been more clear in its Order enjoining the

enforcement of the statute." Id. (footnote omitted).

We note that the Modifying Order was issued on June 1, 2000, subsequent to
the filing of the notice of appeal. Generally, the filing of a notice of appeal
immediately transfers jurisdiction of all matters relating to the appeal from the
district court to the court of appeals. See In re Grand Jury Proceedings Under
Seal, 947 F.2d 1188, 1190 (4th Cir. 1991) (citations omitted). However, the
district court possessed jurisdiction to modify the injunction under an exception
to the general rule: "[A] district court does not lose jurisdiction to proceed as to
matters in aid of the appeal." Id. (citations omitted). The district court aided in
this appeal by relieving us from considering the substance of an issue begotten
merely from imprecise wording in the injunction.
3

When the merits of the preliminary injunction were argued in the district court,
the Governor and Griffith asserted that the Commonwealth would be
irreparably harmed if the court enjoined enforcement of section 46.2-930,
because the statute is "one of the tools available to the Commissioner . . . to
promote safety on Virginia roadways." Order, at 11. The Governor and Griffith
have not raised any such safety concern on appeal, and do not otherwise
challenge the merits or propriety of the injunction.

Although the district court deferred ruling on the sovereign immunity issue, it
did agree with another of the Lytles' contentions, that "the Governor's
inconsistency in litigating cases in the Commonwealth (as to whether he does
or does not move to dismiss when he is named personally in a case) cuts against
the Governor's argument that he should be immune from suits challenging the
constitutionality of state statutes under the Eleventh Amendment." Modifying
Order, at 7. The district court observed:
Most notably, the [Lytles] refer to the Governor's status as a defendant in the
recent partial birth abortion case, Richmond Medical Center for Women v.
Gilmore, 11 F. Supp. 2d 795 (E.D. Va. 1998) . . . . The Governor argues that
his litigation tactics in other cases should not impact this Court's decision, and
essentially, that he should not be required to make consistent legal arguments in
each case. While the inconsistency of the Governor's arguments should not be
the sole basis for denying the instant motion, the Court disagrees with the
Governor's position on this issue.
Id.

We observe that it is passing strange to utilize an interlocutory appeal of an

injunction (where we possess jurisdiction under 28 U.S.C. S 1292(a)(1)) to seek
review of an issue never raised in the district court, particularly in a
circumstance where the appellant has abandoned appellate review of the

injunction's propriety. See supra note 3. We have not addressed the merits of
this issue, and need not do so; our position may or may not be in accordance
with that espoused in the dissent of our good Chief Judge. Rather, we believe
this case should be handled in a routine and orderly manner, and without the
specter of an advisory opinion on an issue the district court has not been
permitted to fully address. While the dissent maintains that "[r]emanding this
case serves only to encourage future plaintiffs to denominate Governors
routinely as party defendants in the hope that a `special relation' may one day
appear," post, at 13 n.*, remand should in fact serve to discourage litigants and
their counsel from engaging in court-shopping, an untoward maneuver that, as
the district court indicated, may well lie at the root of this unusual appeal.
WILKINSON, Chief Judge, dissenting:
25

I respectfully dissent from the decision to remand this case. The parties have
thoroughly briefed and argued the Eleventh Amendment question. It is ripe for
resolution. The Governor of Virginia simply is not a proper party to this suit.
There is no indication that the Governor actively enforced the challenged traffic
statute or that he intends to do so in the future. Furthermore, the Governor's
general duty to enforce the laws of Virginia does not satisfy Ex parte Young's
requirement

26

that the Governor bear a "special relation" to the statute under challenge. Any
other result would routinely subject a Governor to suits challenging the validity
of the most minor of state laws and regulations. I would dismiss the Governor
as a defendant in this action.
I.

27

As an initial matter, I disagree with my good colleagues that a remand in this

case is appropriate. It is proper to consider here the Eleventh Amendment
question even though Virginia did not raise it in the district court prior to filing
this appeal. See Edelman v. Jordan, 415 U.S. 651, 677-78 (1974) (holding that
a defendant may raise an Eleventh Amendment argument in the court of
appeals, even after failing to do so in the lower court); Suarez Corp. Industries
v. McGraw, 125 F.3d 222, 227 (4th Cir. 1997) ("We believe that, because of its
jurisdictional nature, a court ought to consider the issue of Eleventh
Amendment immunity at any time, even sua sponte.").

28

Remand serves no useful purpose in this case. Both parties have ably briefed
and argued this issue. Indeed, the district court has stated that it is waiting for

this court to decide it. This court fully understands the Eleventh Amendment
issue and its application to the facts here. As a result, we have an obligation to
render a decision.
29

Furthermore, the parties deserve better than to have a preliminary issue

remanded by this court. We ought not to lose sight of the fact that this is an
interlocutory appeal. See 28 U.S.C. S 1292(a)(1). Remand on a preliminary
matter will only delay the parties in reaching the merits of their case. By
contrast, even if the Governor is removed from this case, the plaintiffs may
name a more suitable state official as defendant and proceed with their suit.*
II.

30

Turning to the Eleventh Amendment question, it is clear that the Governor is

not a proper party to this action.
A.

31

Ex parte Young, 209 U.S. 123 (1908), permits citizens to sue state officials to
enjoin the enforcement of unconstitutional laws. This rule is an exception to the
general constitutional command that federal courts do not have jurisdiction over
suits by citizens against the states. The Young exception is limited, however,
by its requirement that named state officials bear a special relation to the
challenged statute. Young recognized that the fundamental purpose of the
Eleventh Amendment would be thwarted if parties could name any state
official in an action. The Court stated that "it is plain that such officer must
have some connection with the enforcement of the act, or else it is merely
making him a party as a representative of the State, and thereby attempting to
make the State a party." Young, 209 U.S. at 157.

32

Young's "special relation" requirement prevents parties from circumventing the

dictates of the Eleventh Amendment. Young demands precision in naming
parties because otherwise:

33

the constitutionality of every act passed by the legislature could be tested by a

suit against the governor and the attorney general, based upon the theory that
the former, as the executive of the State, was, in a general sense, charged with
the execution of all its laws, and the latter, as attorney general, might represent
the State in litigation involving the enforcement of its statutes.

34

Young, 209 U.S. at 157 (quoting Fitts v. McGhee, 172 U.S. 516, 530 (1899)).

34

Young, 209 U.S. at 157 (quoting Fitts v. McGhee, 172 U.S. 516, 530 (1899)).
The Supreme Court recognized that such a strategy might be a convenient way
to obtain a speedy determination of constitutional questions. However, that
strategy "cannot be applied to the States of the Union consistently with the
fundamental principle that they cannot, without their assent, be brought into
any court at the suit of private persons." Id. at 157 (quoting Fitts, 172 U.S. at
530).

35

Young went on to note that general grants of authority may sometimes create a
"special relation" between a state official and the challenged statute. The Court
held: "The fact that the state officer by virtue of his office has some connection
with the enforcement of the act is the important and material fact, and whether
it arises out of the general law, or is specially created by the act itself, is not
material so long as it exists." Young, 209 U.S. at 157. Young failed to explain,
however, what type of "general laws" create a sufficient connection. It is upon
this question that the current appeal now turns.
B.

36

The question of whether the Governor of Virginia has any "special relation" to
Virginia Code S 46.2-930 is determined by analyzing state law. See Young,
209 U.S. at 157. The text ofS 46.2-930 reads in full:

37

Loitering on Bridges. Pedestrians shall not loiter on any bridge on which the
Commonwealth Transportation Commissioner has posted signs prohibiting
such action. Any person violating the provisions of this section shall be guilty
of a traffic infraction.

38

The text makes no mention of the Governor. Rather, the only state official
mentioned by S 46.2-930 is the Commonwealth's Transportation
Commissioner, who has authority to post signs prohibiting loitering.
Furthermore, Virginia law delegates the enforcement of the challenged statute
to local police officers. See Va. Code S 46.2-937.

39

The plaintiffs argue, however, that Governor Gilmore is sufficiently connected

to S 46.2-930 by virtue of his general duties as Governor. They contend that
Young's special relation requirement applies solely to state officials, such as the
Secretary of Education, who have "no duty at all with regard to the act."
Young, 209 U.S. at 158 (emphasis added). By contrast, the plaintiffs argue that
Governor Gilmore's duty to "take care that the laws be faithfully executed"
sufficiently connects him to S 46.2-930. See Va. Const. art. V, S 7. The
Governor also has authority to request that the Attorney General prosecute S

46.2-930, or to summon law enforcement agencies to enforce the Act if such

enforcement is necessary to preserve the peace and safety of the
Commonwealth. See Va. CodeSS 2.1-124; 18.2-410.
40

I do not think that the Governor's general authority to enforce the laws of the
Commonwealth is sufficient to satisfy Young's special relation requirement.
"General authority to enforce the laws of the state is not sufficient to make
government officials the proper parties to litigation challenging the law."
Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th
Cir. 1996) (citing 1st Westco Corp. v. School Dist. of Philadelphia, 6 F.3d 108,
113 (3d Cir. 1993)); see also Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir.
1998) ("[A] generalized duty to enforce state law or general supervisory power
over the persons responsible for enforcing the challenged provision will not
subject an official to suit") (citing Los Angeles County Bar Ass'n v. Eu, 979
F.2d 697, 704 (9th Cir. 1992)); Mendez v. Heller, 530 F.2d 457, 460 (2d Cir.
1976) (attorney general's duties to support the constitutionality of challenged
state statutes and to defend actions in which the state is interested do not make
him a proper defendant); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.
1979) (general duty of governor "to enforce state laws does not make him a
proper defendant in every action attacking the constitutionality of a state
statute"). To hold otherwise would extend Young beyond what the Supreme
Court has intended and held. See Children's Healthcare, 92 F.3d at 1416; see
also Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 102 (1984).

41

Rather, it is only appropriate to allow a state official to be named in a suit based

on his general duties where there is a "real, not ephemeral, likelihood or
realistic potential that the connection will be employed against the plaintiff's
interests." 1st Westco, 6 F.3d at 114 (internal citation omitted); see also Long
v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992) (per curiam) (holding that
state attorney general was not proper party where there was no real likelihood
that he would enforce his supervisory powers against the plaintiffs' interest);
Sherman v. Community Consol. School Dist. 21, 980 F.2d 437, 44041 (7th Cir.
1992) (holding that state attorney general was not proper party where he never
threatened the plaintiffs with prosecution and apparently had no authority to do
so). This requirement is consistent with Young, where the Minnesota Attorney
General had already commenced proceedings to enforce the challenged statute.
Young, 209 U.S. at 160.

42

Here, the Governor bears no real connection to the enforcement of S 46.2-930.

There is no allegation that the Governor ordered its enforcement against the
plaintiffs. Insofar as this record shows, the Governor has never ordered its
enforcement against anyone. Nor is there a real likelihood that the Governor

will ever use the power of his office to enforce a mere traffic infraction, a
violation of which is punishable by a fine and costs totaling forty-three dollars.
Furthermore, since traffic infractions are "not deemed to be criminal in nature"
under Virginia law, see Va. CodeS 18.2-8, it is doubtful whether the Governor's
separate power to request criminal prosecution by the Attorney General is even
implicated in this case. See Va. Code S 2.1-124.
43

Removing the Governor as defendant will not have the effect of pushing the
plaintiffs out of court. The plaintiffs can still seek relief by naming as defendant
the Commonwealth's Transportation Commissioner. As the text of S 46.2-930
explicitly indicates, the Commissioner plays a crucial role in the statutory
scheme. It is only by his designation that a bridge may receive a "No Loitering"
designation under the Act. Without this designation, no state official can
enforce S 46.2-930. Likewise, the Commissioner possesses the authority to
cover the signs if the court orders him to do so, thus rendering S 46.2930
unenforceable. By contrast, the Governor has no special relation to this law, nor
is there any indication that the Governor himself intends to enforce the law in
the future.
C.

44

If the Governor is forced to remain a party to this suit, then the Governor also
may be named in lawsuits challenging the validity of any state law. Such an
approach would be problematic in several ways. First, such a practice would be
inconsistent with the approach governing suits which challenge federal laws.
Such suits are not routinely brought against the President simply by virtue of
his constitutional duty to enforce the laws. Rather, other federal officials who
bear a discernable relationship to the challenged statute are typically named.
See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
(Attorney General named as a defendant in a suit challenging the
constitutionality of federal statute criminalizing the knowing transmission of
indecent materials to minors); National Endowment for the Arts v. Finley, 524
U.S. 569 (1998) (Chairperson of the NEA named as a defendant in a suit
challenging the constitutionality of federal statute requiring NEA to ensure that
grants are awarded based upon artistic excellence and artistic merit); Eastern
Enterprises v. Apfel, 524 U.S. 498 (1998) (Commissioner of Social Security
named as a defendant in a suit challenging the constitutionality of federal
statute requiring coal company to pay premiums for beneficiaries assigned by
Commissioner). Moreover, when cases challenge the validity of federal
regulations, the defendant is generally the Secretary of the department that
issued them. See, e.g., Regions Hosp. v. Shalala, 522 U.S. 448 (1998); Public
Lands Council v. Babbitt, 529 U.S. 728 (2000). The President's general duty to

ensure that the laws of the land are faithfully executed does not mean that the
President is a defendant in every suit testing the validity of a federal enactment.
45

Next, permitting a party to name the Governor in any suit challenging the
validity of state law would allow the rule in Ex parte Young to swallow the
protections offered by the Eleventh Amendment. Plaintiffs could routinely
name the Governor as a defendant in an effort to obtain a judgment binding on
the State. Plaintiff's approach would also regularly subject the Governor to the
risk of contempt. The President of the United States may not be enjoined in the
performance of his official duties. See Mississippi v. Johnson, 71 U.S. (4 Wall.)
475, 501 (1867). This rule is founded partly upon an unwillingness to subject
the head of the Executive branch to the possibility of being cited for contempt.
Unlike his Cabinet officers and other subordinate officials, the Governor is the
embodiment of the Executive power in Virginia. Subjecting governors
gratuitously to the threat of citations for contempt is an unwarranted federal
interference with the administration of state government.

46

At the very least, this court should leave it to the states to choose which
officials they would subject to binding federal decrees. The federal courts
should not lightly interfere with state decisions on the very organization of state
governments. It is difficult to imagine a more fundamental intrusion on state
sovereignty. The Supreme Court drew this line as far back as 1911 in Coyle v.
Smith, 221 U.S. 559, 565 (1911), where it forbade the federal government from
ordering the State of Oklahoma to locate its capital in a certain city. See also
Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (holding that the states' right to
structure their internal governmental operations and to create restrictions on the
exercise of government authority is "a decision of the most fundamental sort for
a sovereign entity"). Plaintiffs ask us to interpret Virginia law to bestow upon
the Governor an obligation to enforce a mere traffic statute. However,
Virginia's officials have designed state operations so that the Governor is not
charged with the enforcement of S 46.2-930. The Virginia legislature
determined that the Transportation Commissioner and the local police would
assume this duty. Likewise, the Governor has not assumed that duty by
attempting to enforce this statute. Implicit in the legislature's and the
Governor's choice is a desire not to subject the Governor of the Commonwealth
to the onus of judicial process in suits seeking to enjoin enforcement of S 46.2930. Holding that the Governor bears a special connection to this statute simply
neglects Virginia's decisions in this area.
III.

47

The purpose of the "special relation" requirement is not to erect barriers for

parties seeking to enforce their constitutional rights under Ex parte Young.

Rather, the requirement merely seeks to enforce a modicum of precision in
determining which state officials are named. In this case, officials other than
the Governor bear the duty of enforcing S 46.2-930. To allow the Governor to
remain a named party in this case would eviscerate the limits Young
established and reorder settled Eleventh Amendment law.
48

I would dismiss the Governor as a defendant in this case.

Notes:
*

The majority suggests that any opinion on the Governor's status might
somehow be advisory. See supra, n.5. Not so. This appeal squarely presents a
jurisdictional issue, which is not going to disappear upon remand.
Plaintiffs bear the burden of alleging facts which, if proven, would establish
that the Governor actually belongs in the suit. This plaintiffs have failed to do.
Plaintiffs have not even requested a remand for findings of jurisdictional facts,
nor have they suggested that the Governor bears anything other than the
general legal connection of any chief executive to the challenged enactment.
Remanding this case serves only to encourage future plaintiffs to denominate
Governors routinely as party defendants in the hope that a "special relation"
may one day appear. This is not what I understand the rule of Ex parte Young
to be about.