STATE OF RIDGEWAY
NUGHSON
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DOCKET NO. RSV-CV-270
Plaintiff
v.
BOMMES
Defendant
DEFENDANT’S MOTION TO DISMISS
The State of Ridgeway moves to dismiss the above named suit.
INTRODUCTION
Per the Plaintiff’s Civil Complaint, this suit is a pre-enforcement challenge to “Title 3,
Section 14 of the Ridgeway County Code.” See Plaintiff’s Complaint, at 1. This is not a real
statute. Instead, we construe this suit to be a facial challenge to §3.13 Stalking. We fill this blank
in for the Plaintiff because on their original filling, they note the stalking statute as the one being
challenged.
This suit should be dismissed because the Plaintiff fails to make proper pleadings that
entitle him to relief, and because even if he did make the correct allegations, relief could not be
granted.
ARGUMENT
I. PLAINTIFF LACKS STANDING TO BRING THIS SUIT.
In order for the Superior Court to have jurisdiction over a matter, there must be a “case or
controversy.” Ridgeway State Constitution, Art. V Sec. IV. This mirrors the “cases or
controversies” clause in the Federal Constitution. U.S Const, Article III, Section II. Because our
clauses are the same, this court should adopt the standing doctrine created by decades of
jurisprudence at the federal level.
In order to retain standing, Plaintiff’s must have suffered and plead, among other things,
an “injury in fact—an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders
of Wildlife, 504 U.S. 555 (1992)(cleaned up). In a pre-enforcement challenge, Plaintiffs are
incapable of making such allegations because the entire foundation of these challenges is that no
injury has actully been inflicted. This stems from the notion that Plaintiffs should not have to
“first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he
claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459,
94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). In pre-enforcement challenges, Plaintiffs satisfy the
injury-in-fact requirement when they successfully allege that the “threatened enforcement [of a
law is] sufficiently imminent.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014). They
must also allege “an intention to engage in a course of conduct” that is illegal. Babbitt v. Farm
Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Plaintiff here has failed to
make any of these allegations, and so, he does not satisfy the injury-in-fact requirement. This
court, consequently, does not have jurisdiction to hear this claim.
It is not enough to allege that if the law is enforced, “citizens” at-large will have their
rights taken away. See Plaintiff’s Complaint, at 1. Indeed, "persons having no fears of state
prosecution except those that are imaginary or speculative, are not to be accepted as appropriate
plaintiffs." Younger v. Harris, 401 U. S. 37, 42 (1971); Golden v. Zwickler, 394 U. S. 103 (1969).
“When plaintiffs do not claim that they have ever been threatened with prosecution, that a
prosecution is likely, or even that a prosecution is remotely possible, they do not allege a dispute
susceptible to resolution by a federal court.” Babbitt v. Farm Workers, 442 US 289
(1979)(quoting Younger v. Harris, 401 U.S 37, at 42)(cleaned up.)
Plaintiff makes a number of allegations suggesting that this law is unconstitutional. But
because they fail to demonstrate that the unconstitutional law is actually going to be enforced,
and going to be enforced against them, they fail to plead a claim that entitles them to relief. Of
course, the mere presence of a law on the law books is not enough to inflict injury. Judicial
review does not confer unto the judiciary a veto power. “The power of judicial review is more
limited: It allows a court to decline to enforce a statute, and to enjoin the executive from
enforcing that statute.” Jonathan F. Mitchell, Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933
(2018)1; see also, Steffel v. Thompson, 415 U.S. 452, 469 (1974) (“Of course, a favorable
declaratory judgment . . . cannot make even an unconstitutional statute disappear.” (quoting
Perez v. Ledesma, 401 U.S. 82, 124 (1971) (Brennan, J., concurring in part and dissenting in
part))); Winsness v. Yocom, 433 F.3d 727, 728 (10th Cir. 2006) (McConnell, J.) (“There is no
procedure in American law for courts or other agencies of government — other than the
legislature itself — to purge from the statute books, laws that conflict with the Constitution as
interpreted by the courts.”) Enforcement is what inflicts injury. The mere presence of a law does
not.
Plaintiff fails to allege an injury-in-fact because they fail to allege that the law is going to
be enforced, and that the law is going to be enforced against them. The alleged Constitutional
infringements that follow are speculative at best, and non-existent at worst.
II. REQUESTED RELIEF CANNOT BE GRANTED IN THE DEFENDANT’S
INDIVIDUAL CAPACITY
The Plaintiffs in this matter brought a suit forward against the Defendant, who is the
Attorney General, in his individual capacity as opposed to his official capacity. This distinction is
paramount in any type of lawsuit. In order to get the equitable relief requested, one must sue the
correct individual in their correct capacity. In pre-enforcement challenges, the “defendant[] must
have some connection with the enforcement of the act—i.e., the right and the power to enforce
the act alleged to be unconstitutional.” See Whole Woman's Health v. Jackson, 595 U.S (2021).
1 https://www.supremecourt.gov/opinions/URLs_Cited/OT2017/16-476/16-476-3.pdf
The Attorney General of the State of Ridgeway is the “Chief Prosecutor and Chief Attorney of
the State; and shall have the sole power to prosecute [. . .]” See Ridgeway State Constitution,
Art. IV, Sec. 5. But the Attorney General is not being sued here. Only the individual that
occupies that seat. This is because §3.13 Stalking is enforced when the Attorney General acts in
his official capacity to prosecute any one who transgresses the aforementioned statute. This
action is not a suit against his official capacity. “Acts performed by the same person in two
different capacities are generally treated as the transactions of two different legal personages.”
See Bender v. Williamsport Area School Dist., 475 US 534 (1986)(quoting F. James & G.
Hazard, Civil Procedure § 11.6, p. 594 (3d ed. 1985))(internal quotation omitted).
It has also long been held that one cannot appeal a case in their individual capacity, if
they were sued in their official capacity. “The fact that [the plaintiff] was sued in his official
capacity does not give him standing to appeal in his individual capacity.” Id. This lends itself to
the long held distinction between the capacities. Each capacity is reserved for some type of
situation, however, in this case the Plaintiff’s had no reason to sue the Attorney General in his
individual capacity for something that he only has the power to do in his official capacity.
Plaintiff’s are unable to reach the sovereign body at-large, and enjoin them from
enforcing the law because they do not litigate against the sovereign body, only against one
individual. They cannot enjoin Bommes as an individual because he does not enforce the law as
an individual. Because the relief cannot be granted, the case must be dismissed. Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992)(Holding that a Plaintiff must show that the injury is
“likely to be redressed by the requested relief” in order to have standing.)
CONCLUSION
For the reasons above, this suit must be dismissed.
Respectfully submitted,
CLIFFORD2
Solicitor General
Department of Justice
Counsel of Record
TURNTABLE5000
Assistant Solicitor General
Department of Justice
Date: April 23, 2022
