author: KISER, District Judge.

text:
    Robert C. PETERS, Plaintiff, v. Preston MOSES, et al, Defendants.
    Civ. A. No. 84-0091-D.
    United States District Court, W.D. Virginia, Danville Division.
    May 17, 1985.
    W. Carrington Thompson, Luis A. Abreu, Clement & Wheatley, Danville, Va., for Robert C. Peters.
    David B. Worthy, Stone & Worthy, Martinsville, Va., for Preston Moses, et. al.
   MEMORANDUM OPINION

KISER, District Judge.

This is an action arising out of a refusal by the Pittsylvania County, Virginia School Board Selection Commission (hereinafter “SBSC”) to consider the Plaintiff for a seat on the School Board of Pittsylvania County, Virginia (hereinafter “Board”) because of his race. The Plaintiff, Robert C. Peters, a white male, on June 19, 1984, appeared before the SBSC to offer himself as a candidate for school board appointment. After being nominated for one of two at-large vacancies on the Board, Defendant Preston Moses, Chairman of the SBSC, stated that the at-large seats were reserved for members of the black community. As a consequence of this policy, the SBSC refused to consider the nomination of Peters, and this action ensued.

Jurisdiction is proper in this Court by virtue of 28 U.S.C. § 1343 and 42 U.S.C. §§ 1983, 1985 and 1986. The Plaintiff is seeking both legal and equitable relief. He seeks to have the alleged discriminatory practices enjoined and also seeks compensatory and punitive damages. The Defendants in this action are the Chairman and other members of the SBSC; they are Preston Moses, Chairman; Gladys W. Carter; J. Lemuel Carter; J. Allen Cook; Marshall H. Kendall; R. Louis Short and J. Leland Williams. This case was tried before and submitted to a jury on a special verdict. The only issues submitted to the jury on the special verdict were: (1) whether the SBSC was restricting the two at-large seats on the School Board to blacks pursuant to a recommendation of the Pittsylvania County Board of Supervisors; (2) whether the Defendant Moses had acted in subjective bad faith; and (3) assuming that the Court determined that Peters’ rights were violated, the total amount of damages suffered by him. The jury found that the SBSC was carrying out the wishes of the Board of Supervisors, that Moses was not acting in subjective bad faith and further awarded damages of $5,000 compensatory and $5,000 punitive. In addition to denying liability, Moses raised the defense of qualified immunity. Based on the jury’s resolution of the material facts which underlie the claim of the constitutional deprivation, it is the Court’s task to decide as a matter of law whether the Plaintiff’s constitutional rights were violated, and if so, whether Moses’ defense of qualified immunity to Plaintiff’s demand for monetary damages is valid. And, finally, the Court must determine whether the Plaintiff is entitled to any equitable relief.

A. Background

Before reaching the facts of this case and an analysis of the legal issues presented, a brief review of Virginia law that governs school board appointments is required. The General Assembly of Virginia has established alternative methods of selecting school board members in school divisions composed of a single county. The Pittsylvania County school division, a single county division, selected the procedure whereby the school board members are appointed by an independent School Board Selection Commission (“SBSC”).

The SBSC, which is charged with making school board appointments, is composed of one member from each election district of the county, and these individuals are themselves appointed by the Circuit Court of Pittsylvania County, Virginia. Va.Code § 22.1-35 1950, as amended. They serve four (4) year terms. Whenever vacancies occur on the Pittsylvania County School Board whether by expiration of natural term, resignation or death, the SBSC is authorized to give public notice of their meetings at which time the appointments will be made. Va.Code § 22.1-35 et. seq. 1950.

It has been common practice in Pittsylvania County for the SBSC to hold two meetings when filling a vacancy on the Board. The first session typically is held one day prior to the day noticed for the actual appointments. Normally, at this interview session, the potential nominees appear before the SBSC to briefly introduce themselves and to answer any questions which might be addressed to them. These same or additional individuals then appear before the SBSC on the following day at which time the formal nomination and appointment takes place. The facts, which give rise to this action, occurred at one of these nominating meetings and will be addressed in greater detail later in the opinion.

The Pittsylvania County School Board is comprised of twelve members. There is one member from each of the seven magisterial districts, one from each of the three incorporated towns in the county, and two members selected from the county at large. The present controversy arises out of these latter two seats.

The Code of Virginia grants the governing body of a county, in this case a board of supervisors, the authority to authorize the SBSC to appoint no more than two members from the county at large. Va. Code § 22.1-36 1950, as amended. The Board of Supervisors is also responsible for making financial appropriations to the school system; however, this is the limit of their control. The SBSC is a completely autonomous body. The Supervisors of Pittsylvania County had, in fact, exercised the option to enlarge school board representation. The evidence indicated that on December 6, 1971, the Board of Supervisors unanimously passed a resolution authorizing the then School Trustee Electoral Board (now “SBSC”) to appoint two members at large to the Pittsylvania County School Board. As a supplement to their resolution, the Board of Supervisors also approved the following recommendation:

Further, the Board of Supervisors of Pittsylvania County, Virginia, at the above time and meeting place as supplement to the above resolution doth resolve, request and recommend to the Pittsylvania County School Trustee Electoral Board for their consideration that the two additional members to be appointed from the County of Pittsylvania at large be two qualified citizens from the Black Community of Pittsylvania County.

Defendant’s Exhibit # 5.

This action by the Supervisors did not have, nor was it intended to have, any binding, legal effect on the SBSC. It was a mere recommendation and nothing more. Mr. James Kent, an attorney from Altavista, Virginia, was a member of the Board of Supervisors at the time the resolution was adopted and was responsible for making the motion which was unanimously approved. While testifying in this case, Mr. Kent stated that the resolution was bifurcated. The first portion of the resolution, which authorized the creation of the seats at-large, was legally binding on the SBSC. He testified that the second portion of the resolution, which requested that the two at-large seats be filled by qualified citizens in the black community, was not legally binding. As noted earlier, the SBSC was and is a totally independent body not subject to control by any other local governing entity. Therefore, the Supervisors could not compel the SBSC to follow this recommendation. As Mr. Kent indicated, the latter portion of this resolution was an effort by the Supervisors to respond to increasing pressure from the black community to provide some black representation on the Board. The undisputed evidence was that no black had ever served on the School Board prior to this resolution. Although this provision was not legally binding on the SBSC, it adhered to it faithfully. In fact, it is the Defendants’ position that these seats are reserved for blacks and no white will be appointed to them.

B. Facts

Mr. Peters, a resident of the Tunstall Magisterial District of Pittsylvania County, Virginia, was nominated and appointed as the Tunstall representative on the Pittsylvania County School Board in 1980. His appointment was for a four-year term which commenced on July 1, 1980 and expired on June 30, 1984. Three seats, including Mr. Peters’ Tunstall seat, came up for reappointment in June of 1984. The SBSC met twice to make the appointments. At the first meeting or interview session on June 18, 1984, it became apparent that Mr. Peters would have opposition for the Tun-stall seat. The Plaintiff testified that the SBSC seemed hostile to him at the interview session and that it was obvious to him that he would not be reappointed to the Tunstall seat. In fact, he was not reappointed.

On June 19, 1984, the SBSC held a public meeting to make the appointments for the three vacancies, the Tunstall seat held by Mr. Peters, the Town of Hurt seat, and one of the at-large seats traditionally held by a black citizen. Nominations were taken for all of the vacancies before the actual selection took place. The SBSC accepted nominations for the Tunstall seat first. Peters and Ronald Williams were nominated for this vacancy, and then one person was nominated for the Hurt seat. The final item of business was to receive nominations for the at-large seat. Koyeton Beavers was nominated; he is a black male who had previously occupied the seat.

At this point in the proceedings, Tom Gatewood stated he wished to nominate both Peters and Williams for the at-large seat. Moses was aware that there might be an effort to have Peters appointed to the at-large seat; so he had armed himself with a copy of the minutes of the 1971 Board of Supervisors meeting which contained the above-quoted resolution. When Gatewood attempted to place the names of Peters and Williams into nomination, Moses informed Gatewood that he was out of order. Moses told Gatewood that the resolution called for the seats to be held by blacks and that Mr. Peters did not qualify for the at-large seat. Gatewood asked to see a copy of the resolution which Moses gave him. While Gatewood reviewed the resolution, the SBSC proceeded to cast their votes. Williams was appointed to the Tunstall seat, and Beavers was unanimously appointed to the at-large seat. Gate-wood informed Moses that the resolution only recommended that the seats be held by blacks and that it was not mandatory. Moses stated to Gatewood that the resolution “called for” a black representative. At any rate, Peters was not considered. In fact, Moses testified that neither Peters nor Williams were qualified for the at-large seat because of their race, and he further stated that he never asked if there were any votes for Peters.

The testimony from numerous witnesses indicated that Peters was not considered by the SBSC as a candidate for the at-large seat. The jury also found this. One of the questions addressed to them was whether the SBSC in reserving the seats had it as their intent to follow the recommendation set forth in the 1971 resolution. The jury responded affirmatively thereby indicating that no white was considered for this seat. The Court agrees with this finding. I conclude that Peters was in fact denied consideration for the at-large seat on the basis of his race. It is this denial from consideration which forms the sole basis for this law suit. The question now is whether that denial violated any right guaranteed by the Constitution, and if so, whether he is entitled to relief.

After being refused consideration for the at-large seat, Peters filed this action alleging that he had been denied consideration for a public office on the basis of his race and race alone, and that this denied him equal protection of the laws as required by the Fourteenth Amendment of the United States Constitution. To borrow a phrase developed in the last decade in this area of the law, Peters argues that he has been the victim of “reverse discrimination”, and in so arguing, he places great reliance on the opinions of the United States Supreme Court announced in the cases of Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Fullilove v. Klutznick, Secretary of Commerce, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). The Defendants in opposition argue that the Bakke and Fullilove decisions are inopposite to the present case and that the good faith qualified immunity defense bars any claims raised by Peters for monetary damages. I address both the equal protection and the good faith immunity issues.

C. Conclusions of Law

PART I

I am called upon to determine whether the actions of the Defendants in reserving exclusively for blacks the two at-large School Board seats violates the Equal Protection Clause of the Fourteenth Amendment. In undertaking this task, I have looked to the cases of Bakke, supra, and Fullilove, supra, for guidance from the Supreme Court, but unfortunately in those opinions the court speaks not as the Court with one voice but rather as individual justices with many voices. While the various approaches are all insightful, the voice that I find the most persuasive is that of Mr. Justice Stewart in his dissent in Fullilove. I find no exposition of these cases by the Fourth Circuit, but two of my brothers of the District Courts in the Fourth Circuit have listened to a different voice, that of Justice Powell but with opposite results.

The exact words that I am called upon to apply to the facts of this case are: “No state shall ... deny to any person the equal protection of the laws.” U.S. Constitution, Fourteenth Amendment, § 1. It has been held that the Equal Protection Clause creates a personal right that guarantees to the individual that he will receive equal treatment at the hands of government. “The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.” Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161 (1948). Although the Clause permits rational classifications, Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949), it forbids classifications based on race.

Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color.

Shelley, 334 U.S. at 23, 68 S.Ct. at 847 (1948).

In the same vein, over thirty years later, Mr. Justice Stewart stated:

[Our] cases have made clear that the Constitution is wholly neutral in forbidding such racial discrimination, whatever the race may be of those who are its victims. Fullilove, 448 U.S. at 524 [100 S.Ct. at 2798] (Stewart, J., dissenting) (emphasis added).
Under our Constitution, the Government may never act to the detriment of a person solely because of that person’s race. The color of a person’s skin and the country of his origin are immutable facts that bear no relation to ability, disadvantage, moral culpability, or any other characteristics of constitutionally permissible interest to the Government. ‘Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.’ Hirabayashi v. United States, 320 U.S. 81, 100 [63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943)], quoted in Fullilove, 448 U.S. at 525 [100 S.Ct. at 2799] (Stewart, J., dissenting).
In short, racial discrimination is by definition invidious discrimination. Id. at 526 [100 S.Ct. at 2799].
The rule cannot be any different when the persons injured by a racially biased law are not members of a racial minority. Id. at 526 [100 S.Ct. at 2799] (emphasis added).

To attempt to correct past discrimination against blacks by a policy of discriminating against whites is somewhat akin to the thinking that two wrongs make a right. Not only is such thinking illogical, it is constitutionally impermissible. As the Court has noted: “[e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities.” Shelley v. Kraemer, 334 U.S. at 22, 68 S.Ct. at 846.

The fact that the discrimination is well-intended or laudable in its objectives does not except it from the prohibition of the Equal Protection Clause. Perhaps no more laudable end can be sought by government than the protection and welfare of its children. Yet, when a Florida court decided it would be detrimental to a white child to subject her to the societal taunts and pressures which would result from granting custody to her mother who was married to black man, the Supreme Court, while agreeing with the Florida court that the child would be subjected to unjust social pressure, overturned the Florida court and awarded custody to the mother. In so doing, the court said:

A core purpose of the Fourteenth Amendment was to do away with all governmentally-imposed discrimination based on race.

Palmore v. Sidoti, 466 U.S. 429, ---, 104 S.Ct. 1879, 1881, 80 L.Ed.2d 421, 425 (1984).

I am in agreement with this principle. No matter how well-intended, benign or practical, the Fourteenth Amendment was not designed to condone racial preferences.

From the evidence in this case, there is no question in my mind that the initial intent of the SBSC was to alleviate the historical discrimination which had long existed on the School Board by setting aside the two at-large seats for black members. In doing this, several worthwhile objectives were accomplished. It improved community relations between the blacks and whites by assuring blacks seats on the Board; it placed black members on the Board who had greater rapport with the black community and thereby encouraged black participation in school affairs. It is entirely reasonable that black citizens might be more apt to express their concerns and ideas to black School Board members, but more importantly, black School Board members would be more sensitive and compelling in expressing these concerns and ideas to the Board as a whole. It gave a greater sense of security and acceptance to the black professional educators particularly in the areas of hiring, firing, promotion and discipline, and it gave to the black students of the school system a greater sense of belonging.

All of these are laudable reasons and worthy objectives, but nonetheless, it is violative of the Equal Protection Clause to maintain them by a classification based solely on race. It is patently wrong to attain them at the expense of the Plaintiff because “from the perspective of a person detrimentally affected by a racially discriminatory law, the arbitrariness and unfairness is entirely the same, whatever his skin color and whatever the law’s purpose, be it purportedly ‘for the promotion of the public good’ or otherwise.” Fullilove, 448 U.S. at 526, 100 S.Ct. at 2799 (Stewart, J., dissenting). Moreover, “[t]he Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals.” Shelley v. Kraemer, 334 U.S. at 22, 68 S.Ct. at 846.

[T]he guarantee of equal protection immunizes from capricious governmental treatment ‘persons’ — not ‘races’ — it can never countenance laws that seek racial balance as a goal in and of itself. ‘Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.’

Fullilove, 448 U.S. at 529, 100 S.Ct. at 2801 (Stewart, J., dissenting), quoting Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 2757, 57 L.Ed.2d 750 (Powell, J., concurring).

Appealing arguments are made that where there has been a long history of discrimination against blacks a strong affirmative action program favoring blacks is necessary to eradicate the past discrimination, and it is constitutionally acceptable that some whites may have to suffer in the process even though the white individual who must suffer bore no responsibility for the past discrimination. Indeed, affirmative action has been successful and lawful in many contexts: school desegregation, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); and employment discrimination, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). However, these situations are inapposite to the case at hand. In the school desegregation cases, there was no penalizing of the majority class. It was a matter of extending to the minority class the same rights enjoyed by the majority. In the employment cases, many involved private employers to whom the Equal Protection Clause did not apply. More importantly, in all of these cases affirmative action was ordered by a court which fashioned an equitable remedy to fit a specific need. And, as these cases indicate, there is substantial authority for a court to incorporate a racial or ethnic criteria in fashioning an equitable remedy to an established violation. This authority, however, does not extend to all other governmental bodies. As Justice Stewart in his dissenting opinion in Fullilove noted, “[t]he Legislative Branch of government is not a court of equity. It has neither the dispassionate objectivity nor the flexibility that are needed to mold a race-conscious remedy around the single objective of eliminating the effects of past or present discrimination.” Fullilove, supra, 448 U.S. at 527, 100 S.Ct. at 2800 (Stewart, J., dissenting).

In contrast, here the SBSC has adopted a policy of reserving two out of twelve seats for blacks and foreclosing whites and members of other races from consideration for the seats. Thus, unlike the school and employment cases, the policy is implemented at the expense of any white individual who has an interest in the at-large seats on the School Board. Moreover, the policy is at best an arbitrary set aside because it bears absolutely no statistical correlation to the black population of Pittsylvania County generally or to the black population in the schools. Nor are there any other stated criteria such as being tied to a magisterial district or a town, rather the seats are purely at large. In fact, the set aside smacks of tokenism.

When racial discrimination occurs, it hurts not only the individual but society. This case is a good example of that. Although the avowed purpose of the two seat set aside for the blacks was to benefit the black community by alleviating to some degree past discrimination, it has become a detriment to the black community. “[Rjaeial discrimination, even ‘good faith’ racial discrimination, is inevitably a two-edged sword.” Fullilove, supra at 531, 100 S.Ct. at 2802 (Stewart, J., dissenting). As in most quotas, it has become a floor below which the number of black members on the Board will not fall and a ceiling above which the number of black members will not rise. “[PJreferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.” Bakke, supra 438 U.S. at 298, 98 S.Ct. at 2752 (Powell, J., concurring).

There is yet perhaps a more fundamental reason why I believe the two seat set aside serves as a detriment to the black community of Pittsylvania County, and that is a concern which was thoughtfully expressed in the dissenting opinion of Justice Stewart in Fullilove, supra. “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (Brandéis, J., dissenting). A governmental body, and in this case the SBSC, through its example “teaches the public that apportionment of rewards and penalties can legitimately be made according to race — rather than according to merit or ability — and that people can, and perhaps should, view themselves and others in terms of their racial characteristics. Notions of racial entitlement will be fostered, and private discrimination will necessarily be encouraged.” Fullilove, 448 U.S. at 532, 100 S.Ct. at 2802 (Stewart, J., dissenting). This case illustrates graphically not only the folly but also the danger of governmental decisions being made on the basis of race.

I have made no attempt to address all of the legal nuances as to when governmental action may or may not be based on racial considerations; these issues are not before me. I am faced with the single issue of an individual who was categorically excluded from consideration for appointment to public office solely because of the color of his skin. I am convinced that the Equal Protection Clause forbids this type of racial exclusion. Consequently, the SBSC’s policy which permits the appointment of blacks only to the at-large seats of the Pittsylvania County School Board and excludes from consideration for these seats members of any other race must be discontinued.

PART II

Contrary to the urgings of Plaintiff in this case and to the positions taken by my two brethren at the District Court level, I have chosen not to follow the mode of analysis enunciated by Mr. Justice Powell in his concurring opinions in Bakke and Fullilove. I do not believe that Justice Powell’s concurring opinion represents the court’s opinion in Bakke with regard to this matter. Nevertheless, even were I to apply Justice Powell’s analysis, the result in this case would be exactly the same.

In both the Bakke and Fullilove opinions, Justice Powell stated that racial classifications even when used in a benign way should be subjected to strict scrutiny. In order for a racial classification to survive strict scrutiny “a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary ... to the accomplishment’ of its purpose or the safeguarding of its interest.” Bakke, supra, 438 U.S. at 305, 98 S.Ct. at 2756 (Powell, J., concurring). After determining that strict scrutiny was the standard by which benign racial classification should be reviewed, Justice Powell proceeded in Bakke to consider the stated purposes of the special admissions program to determine which, if any, justified the use of the racial classification.

Following this line of analysis, there are numerous reasons why the Pittsylvania County officials might want the two seat set-aside. These are discussed earlier in this Opinion. Supra, p. 1333. They are, very briefly, to remedy past discrimination, to insure input from the black community and to provide representation for black professionals in the system. In accordance with the Powell formula of analysis these purposes must be examined to determine if, singularly or collectively, they are substantial enough to support use of suspect criteria. Bakke, 438 U.S. at 306, 98 S.Ct. at 2756.

The first purpose identified is the remedying of past discrimination. Justice Powell acknowledged that “[gjovernment does have a legitimate interest in ameliorating the disabling effects of identified discrimination. ... But this Court has never approved race-conscious remedies absent judicial, administrative, or legislative findings of constitutional or statutory violations.” Fullilove, 448 U.S. at 497, 100 S.Ct. at 2784 (Powell, J., concurring). He went on to note that before a race conscious remedy could be imposed to ameliorate past discrimination that two conditions had to be satisfied:

1. the governmental body attempting to impose a race-conscious remedy must have the authority to act in response to identified discrimination;
2. the governmental body must make findings that demonstrate the existence of illegal discrimination.

Id. at 498, 100 S.Ct. at 2785.

No matter how well intentioned or benign the classification, if it does not satisfy the criteria set forth by Justice Powell above it cannot be used as a means of remedying past discrimination. I do not believe that the SBSC satisfies either element of Justice Powell’s test.

The SBSC is not a body with authority to act in response to identified discrimination. Their task as created by the legislature of the Commonwealth of Virginia is to make appointments to the school board. To borrow from Justice Stewart’s dissenting opinion in Fullilove where he was discussing Congress’ ability to act in response to discrimination, the SBSC is not a court of equity. Should the SBSC in the exercise of their discretion choose to appoint a black to the School Board, then that is a matter purely within the ambit of their authority; however, they do not have the authority to formulate and administer race conscious programs to remedy past discrimination. Whether the Board of Supervisors, the Circuit Court of Pittsylvania County, or the Virginia General Assembly would have that authority is not for me to decide in this case; it is clear that the SBSC does not have this power.

Moreover, the action taken by SBSC also fails because it does not satisfy the second prong of the test. In Bakke, Justice Powell concluded that the Regents were not empowered to conduct the necessary investigation and make findings with regard to past discrimination and in fact they had not done so. Bakke, supra 438 U.S. at 309, 310, 98 S.Ct. at 2757, 2759 (Powell, J., concurring). The SBSC’s authority and action are similarly flawed. There was no investigation and no finding by the SBSC of discrimination; it simply followed the recommendation of the Board of Supervisors. In light of this, the articulated purpose of remedying past discrimination would not be a compelling governmental interest so as to justify the use of a racial classification in this case. Furthermore, the other objectives mentioned in this Opinion as possible justification for the quota are not such as to satisfy the standard of a compelling governmental interest. Fullilove, supra, 448 U.S. at 498, 100 S.Ct. at 2785 (Powell, J., concurring). Mere practical or desirable ends are insufficient to justify a racial classification. Palmore v. Sidoti, supra.

Justice Powell stated in Fullilove that the cases establish that “even if the government proffers a compelling interest to support reliance upon a suspect classification, the means selected must be narrowly drawn to fulfill the governmental purpose.” Fullilove, supra, at 498, 100 S.Ct. at 2785 (Powell, J., concurring). Along this line, Justice Powell suggested quite strongly in Bakke that the action of the Board of Regents would have passed constitutional muster had the Regents simply used race as a factor in granting or denying admission to medical school rather than establishing quotas. He pointed to the “Harvard Plan” as a workable example of a narrowly drawn means. A like analogy can be made here, i.e. the SBSC could have taken race into account together with other factors in making School Board appointments rather than establishing the two-seat set aside. The SBSC is a totally independent body vested with complete discretion in making appointments. They are free to consider whatever characteristics, including race, that they deem relevant. A quota system certainly was not necessary. I am not prepared to say that using the race factor, as suggested by Justice Powell, would satisfy the constraints of the Equal Protection Clause because that would depend on the facts in each individual case. But I am prepared to say that taking race into account in such a fashion is far less objectionable from a constitutional perspective than is a racial quota system. As I indicated earlier the quota system is a two-edged sword and has the potential of other undesirable consequences.

An individual in this case has been denied an opportunity because of his race. The fact that he happens to be a member of a majority race is of little consequence from a constitutional perspective. The Constitution is a guarantor of personal rights, not class based or race based rights. Therefore, I find that even under the analysis enunciated by Mr. Justice Powell concurring in the opinions of Bakke and Fullilove, Peters rights were violated and that he has been denied equal protection of the law. This, however, does not necessarily entitle him to the damages as assessed by the jury, because as noted earlier in this Opinion, the Defendants have raised the defense of qualified immunity.

D. Qualified Immunity Defense

The decisions of the United States Supreme Court have consistently held that “[gjovernment officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from intentionally disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). See, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). These cases, as well as others, stand for the proposition that “[ejven defendants who violate constitutional rights enjoy qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard.” Davis v. Scherer, — U.S. ---, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984). The standard to be applied in a qualified immunity case is set forth in Harlow v. Fitzgerald, supra, and was reiterated in Davis, supra.

In Harlow, the Supreme Court held that “[gjovernment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, supra, 457 U.S. at 818, 102 S.Ct. at 2738. “Whether an official may prevail in his qualified immunity defense depends upon the ‘objective reasonableness of [his] conduct as measured by reference to clearly established law.’ ... No other ‘circumstances’ are relevant to the issue of qualified immunity.” Davis, 104 S.Ct. at 3018 (emphasis added).

Applying this standard to the case at hand, I find that the Defendant Moses has successfully established a qualified immunity defense. There is no question that Moses was a public official performing a discretionary function. It requires a giant exercise of imagination to conclude that Peters’ rights under the Equal Protection Clause were rights of which a reasonable person would have known. The proof of this statement is in the fragmented opinions of the Supreme Court, both in Bakke and Fullilove.

An issue has been raised by counsel with regard to the consistency of the verdict returned by the jury. Specifically, the parties seek to have resolved a tension which exists between the jury’s responses to Questions 2 and 3b of the Special Verdict. The specific language of these interrogatories are as follows:

Question 2: “Did the Defendants have a good faith belief that it was legal to restrict the at-large seats on the School Board to blacks?”
A: Yes.
Question 3: “Assuming Peters’ civil rights were violated by being denied consideration for the at-large School Board seat: (b) is he also entitled to punitive damages?”
A: Yes.

The tension as alluded to by counsel is that it is impossible for a defendant to have acted in good faith so as to establish a qualified immunity defense and then be found to have acted in bad faith so as to justify the imposition of punitive damages. In light of the qualified immunity standards set forth in Harlow v. Fitzgerald, supra, and reiterated in Davis v. Scherer, supra, Question 2 of the Special Verdict and its response are superfluous and have no real bearing on the defense of qualified immunity.

On the issue of punitive damages, the jury was instructed that the Plaintiff would be entitled to punitive damages if they should find that the Defendant acted willfully, intentionally or with careless and reckless indifference to the Plaintiff’s rights. This was also the subject of a clarifying instruction. The jury was instructed further that they were required to find either ill will or a willful intention to violate the Plaintiff’s rights based upon race. Furthermore, with regard to damages, the interrogatories were so phrased and the jury was instructed to assume that the Defendant had violated the Plaintiff’s rights. Therefore, the jury never had to make the initial determination as to whether there was an actual violation of the Plaintiff’s rights. For purposes of damages, they were to make this assumption. In light of these instructions, the verdict should be read as saying that the Defendant willfully intended to do what he did. Question 3 was posed to the jury to fix damages in the event that the Court determined that the Plaintiff’s rights had been violated and there was no valid qualified immunity defense. At the time of the trial, these legal issues had not been decided by the Court.

The Clerk is directed to send certified copies of this Memorandum Opinion to all counsel of record.

      . Articles Two (2) and Three (3) of Chapter Five (5) of Title 22.1, Code of Va. 1950, as amended.

      . This procedure is explained in detail in Va. Code § 22.1-34, et seq., 1950, as amended.

      . While the issue is not properly before the Court and bears no direct relevance to the case at hand, the statutory basis for the twelve member school board instead of a nine member board is ambiguous. See Va. Code §§ 15.1-571.-1(C); 22.1-36, 1950, as amended.

      . While the Board of Supervisors has power to appropriate the money for the operation of the school system, their control goes only to the entire amount. There does not exist a line item veto.

      . The name was changed from the School Trustee Electoral Board to the School Board Selection Commission in 1980 when the General Assembly rearranged, amended and recodified the laws of Virginia relating generally to education by repealing former Title 22 of the Code and enacting the present Title 22.1 Education. Acts of the General Assembly of Virginia, 1980 Session, Chapter 559.

      . The evidence revealed that a right had developed between Peters and Moses and that this was probably the reason Peters was not reappointed to the Tunstall seat. Whether this is true or not is irrelevant to the issues in this case. It may well be that the Tunstall seat was lost by the Plaintiff because of personal or political differences between him and one or more of the Defendants. This is irrelevant. This suit is not predicated on the loss of the Tunstall seat, but upon the loss of the right to be considered for the at-large seat. I believe, and so find, that the political and personal differences that existed between the Plaintiff and the Defendants played no part in denying the Plaintiff the right to be considered for the at-large seat. I think this is also supported by the jury’s finding in the special verdict when it found that there was no subjective bad faith in denying the Plaintiff the opportunity to be considered for the at-large seat.

      . Question No. 1 on Special Verdict.
      1. In reserving the at-large seats on the school board was it the intent of the School Board Selection Commission to carry out the recommendation set forth in the 1971 resolution of the Board of Supervisors?
      Yes.

      . See, Uzzell, ct al v. Friday, et al., 592 F.Supp. 1502, 1517 (M.D.N.C.1984); J.A. Croson Company v. City of Richmond, 84-0021-R (E.D.Va. 12/3/84).

      . Another very practical purpose is that the two seats set aside in likelihood prevented a discrimination suit by the NAACP to assure black representation on the board.

      . "The natural consequence of our governing processes may well be that the most 'discreet and insular’ of whites ... will be called upon to bear the immediate, direct costs of benign discrimination." Bakke, 438 U.S. at 361, 98 S.Ct. at 2784 (Brennan, J., dissenting); “When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such 'a sharing of the burden’ by innocent parties is not impermissible.” Fullilove, 448 U.S. at 484, 100 S.Ct. at 2778.

      . The Board of Supervisors was apparently unwilling to take the political risk of designating a specific district or town to be represented on the Board by a black.

      . "Racial and ethnic classifications, however, are subject to stringent examination without regard to these additional characteristics [i.e., discreteness and insularity.]” Bakke, 438 U.S. at 290, 98 S.Ct. at 2748 (Powell, J., concurring).
      "Racial classifications must be assessed under the most stringent level of review because immutable characteristics, which bear no relation to individual merit or need, are irrelevant to almost every governmental decision." Fullilove, 448 U.S. at 496, 100 S.Ct. at 2784 (Powell, J., concurring).

      . See, Uzzell, et al v. Friday, et al, 592 F.Supp. 1502, 1517 (M.D.N.C.1984); J.A. Croson Company, et al v. City of Richmond, 84-0021-R, 84-0022-R, p. 26 (E.D.Va. 12/3/84).

      . For a more detailed discussion of the "Harvard Plan” see Bakke, supra, 438 U.S. at 316-324, 98 S.Ct. at 2761-66 (Powell, J., concurring).

      . This rejects the old view that the qualified immunity defense required a subjective as well as an objective element. “The objective element involves a presumptive knowledge of and respect for ‘basic unquestioned constitutional rights.’ Wood v. Strickland, 420 U.S. 308, 322 [95 S.Ct. 992, 1001, 43 L.Ed.2d 214] (1975). The subjective component refers to 'permissible intentions.' Id." Harlow, supra, 457 U.S. at 815, 102 S.Ct. at 2737.


source: Caselaw Access Project

author: RICE, District Judge.

license: Public Domain

text:
    NORTH DIXIE THEATRE, INC., Plaintiff, v. Michael J. McCULLION, et al., Defendants.
    No. C-3-82-389.
    United States District Court, S.D. Ohio, W.D.
    June 10, 1985.

      Robert J. Beggs, Jacob A. Myers, Dayton, Ohio, for plaintiff.
    Douglas Anderson, William Pfeiffer, Asst. Attys. Gen., Columbus, Ohio, for defendants Dollison and Brown.
    Terry Lewis, Pros. Atty., Kettering, Ohio for defendant Terry Lewis.
   DECISION AND ENTRY OVERRULING DEFENDANT LEWIS’ MOTION FOR RECONSIDERATION; DECISION AND ENTRY OVERRULING DEFENDANT LEWIS’ SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT; DECISION AND ENTRY OVERRULING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DECISION AND ENTRY SUSTAINING DEFENDANT McCULLION’S MOTION FOR SUMMARY JUDGMENT; JUDGMENT TO BE ENTERED FOR BOTH DEFENDANTS AND AGAINST PLAINTIFF; TERMINATION ENTRY

RICE, District Judge.

In this action, Plaintiff North Dixie Theatre, Inc. requests a Declaratory Judgment from this Court that Ohio Rev. Code § 4517.02(A)(6) violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. This Court previously overruled the Motion for Summary Judgment (Doc. # 3) filed by Defendant Terry Lewis, the local prosecutor with the duty of enforcing § 4517.02(A)(6) and other relevant criminal statutes. See Doc. # 6. Subsequently, at a preliminary pretrial conference, the parties informed the Court that this case could be submitted on stipulations of fact and cross motions for summary judgment. See Doc. # 10. The Plaintiff and Defendant McCullion have submitted stipulations of fact (Doc. # 16) and cross motions for summary judgment (Docs. # 18, # 19). Defendant Lewis has declined to join the other parties’ stipulations, although he admitted to many in responding to Plaintiff’s request for admissions. See Docs. # 13, # 25. Additionally, although the Court in its Pretrial Order (Doc. # 10) directed counsel to file motions for summary judgment which address the merits of Plaintiff’s constitutional claims, Defendant Lewis has not filed such a motion. However, Defendant Lewis has filed a Motion for Reconsideration (Doc. # 14) in which he requests the Court to reconsider its Decision and Entry (Doc. # 6) overruling his Motion for Summary Judgment (Doc. # 3). Additionally, Lewis has filed a Supplemental Motion for Summary Judgment (Doc. #23).

The Stipulations of Fact (Doc. # 16), between Plaintiff and McCullion, provide, in part, that:

1. Plaintiff North Dixie Theatre, Inc. is a corporation duly incorporated under the laws of the State of Ohio, with its principal place of business located in Harrison Township, Montgomery County, Ohio.
2. Defendant Michael J. McCullion is the Registrar of the Bureau of Motor Vehicles. The Bureau of Motor Vehicles is an agency of the State of Ohio which issues motor vehicles dealer’s licenses pursuant to statute, and enforces the laws relating thereto.
4. Defendant Terry Lewis is the Prosecuting Attorney for the City of Vandalia, Ohio. He is sworn and empowered to prosecute all misdemeanors committed in Harrison Township, Ohio.
5. Plaintiff is the owner of real property located in Harrison Township, Montgomery County, Ohio. For the past twelve years Plaintiff has operated a flea market on said site, which consists of leasing space to persons who wish to sell items of personal property of every description that they own, similar to “garage sales.”
6. On numerous occasions, patrons of Plaintiff have requested space be leased to them in said flea market in order to offer their private motor vehicles for sale. Said patrons are not in the business of dealing in motor vehicles and are specifically exempt from Ohio motor vehicles dealers’ licensing requirements under Section 4517.02(A)(6).
7. Plaintiff has been forced to deny all requests from persons desiring to lease space to sell their own motor vehicles under threat of criminal prosecution by Defendants.
8. Under date of March 23, 1982, the then-Registrar of Motor Vehicles for the State of Ohio, Dean L. Dollison, wrote Plaintiff a letter (a genuine photocopy of which is attached to the Complaint as Exhibit B) stating that if Plaintiff obtained a motor vehicle dealer’s license and did not obtain a certificate of title to each motor vehicle being offered for sale, pursuant to Section 4505.18(B), such motor vehicle dealer’s license would be subject to revocation and Plaintiff would be subject to criminal charges for violation of Section 4505.18(B).
9. Section 4517.02(A)(6) of the Ohio Revised Code prohibits providing a space or location for the sale of motor vehicles at a flea market without obtaining a motor vehicle dealer’s license.
10. Section 4505.18(B) of the Ohio Revised Code requires that a motor vehicle dealer obtain a certificate of title for any motor vehicle he displays for sale or sells.
11. During the customary operation of Plaintiff’s business, Plaintiff does not obtain title to any of the property sold on its premises. Title at all times remains in the owners of the property, who merely lease space at Plaintiff’s place of business for the purpose of selling such property.
12. Section 4517.03(C) of the Ohio Revised Code requires that a place of business that is used for selling or offering for sale motor vehicles shall be used exclusively for such purpose. Under such Section Plaintiff could not also operate a flea market without violating such Section.
13. Sections 4517.02(A)(6), 4505.18(B) and 4517.03(C), in conjunction, as interpreted and applied by the Ohio Bureau of Motor Vehicles, prohibit Plaintiff from leasing space to its patrons who wish to use said space to offer their motor vehicles for sale to the general public.
14. There is no statute in Ohio requiring the lessors of real property leased to persons engaged in the sale of motor vehicles to have a motor vehicle dealer’s license, except persons operating flea markets.
15. There is no statute in Ohio requiring the Lessors of real property leased to persons engaged in the sale of motor vehicles, to also have title to each motor vehicle offered for sale, except persons operating flea markets.
16. Were it not for the Ohio Revised Code Sections cited in Plaintiff’s Complaint, as interpreted and applied by the Ohio Bureau of Motor Vehicles, Plaintiff would no longer deny the right to lease space to individuals who wish to offer their private motor vehicles for sale at Plaintiff’s “flea market” and would actively engage in the lease of space for such purposes.
17. There are licensed motor vehicle dealers in Ohio who lease the real property upon which they conduct their business as licensed motor vehicle dealers and the lessors of such property are not required to obtain a motor vehicle dealers’ license.
18. Prior to enactment of Section 4517.-02(A)(6), Plaintiff permitted its patrons to sell their privately owned motor vehicles at Plaintiff’s flea market.
19. Plaintiff has no motor vehicles for sale.
20. A space or location may be provided by a flea market in Ohio to persons offering for sale their personal motor vehicles without the necessity of obtaining a motor vehicle dealer’s license if the space is provided without a fee or compensation. 21. There is no record of any legislative history (committee reports, testimony, hearings, debate, etc.) addressing the enactment of Section 4517.02(A)(6) as it pertains to flea markets. The original bill did not contain any language concerning flea markets, but it was added prior to enactment.

This cause is now before this Court on the aforementioned motions, to wit: Defendant Lewis’ Motion for Reconsideration (Doc. # 14), Plaintiff’s Motion for Summary Judgment (Doc. # 18), Defendant McCullion’s Motion for Summary Judgment (Doc. # 19) and Defendant Lewis’ Supplemental Motion for Summary Judgment (Doc. # 28). The Court will discuss together the common issues raised by these motions. Initially, the Court will discuss the “defenses” to Plaintiff’s claims which the Defendants raise in their motions. Then, assuming that no defense prevents it from doing so, the Court will turn to the merits of Plaintiff’s constitutional claims.

(A) Defenses

(1) Eleventh Amendment

In his Motion for Summary Judgment (Doc. # 19), Defendant McCullion argues that this action is barred by the Eleventh Amendment. This assertion is without merit. An action, such as the present one, seeking a declaratory judgment and prospective injunctive relief against an officer of a state is not barred by the Eleventh Amendment. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

(2) Abstention

Defendant McCullion also argues in his motion that this Court should abstain from exercising its jurisdiction herein. McCullion relies on two of the abstention doctrines, to wit: Pullman abstention as set forth in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); and Burford abstention as set forth in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943).

Abstention is a judicially created doctrine which is an exception to the grant of jurisdiction set forth in Article III of the United States Constitution. Ada-Cascade Watch Co. v. Cascade Resource Recovery, 720 F.2d 897, 901 (6th Cir.1983). “The doctrine permits federal courts to decline or postpone the exercise of jurisdiction so that a state court will have the opportunity to decide the matters at issue.” Id., citing Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). Nonetheless, abstention is an exception to the “virtually unflagging obligation of federal courts to exercise the jurisdiction given them.” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246. Moreover, abstention is to be narrowly construed, and it is justified only when “the order to the parties to repair to State court would clearly serve an important counterveiling interest.” Id. at 813, 96 S.Ct. at 1244, quoting, County of Allegany v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1062-1063, 3 L.Ed.2d 1163 (1959).

As stated above, Defendant McCullion relies on two of distinct, yet related, doctrines of abstention, to wit: Pullman and Burford. Pullman abstention allows a federal court to stay the proceedings before it in order to provide state courts an opportunity to settle the underlying, unsettled questions of state law, thus avoiding the possibility of the Federal Court’s unnecessarily deciding constitutional questions. Harris County Commissioners Court v. Moore, 420 U.S. 77, 83, 95 S.Ct. 870, 875, 43 L.Ed.2d 32 (1975). Pullman abstention is a recognition that resolution of state law questions in state court may moot a federal constitutional claim. Ada-Cascade, 720 F.2d at 902. In Harris County, the Supreme Court emphasized:

Among the cases that call most insistently for abstention are those in which the federal constitutional challenge turns on a state statute, the meaning of which is unclear under state law. If the state courts would be likely to construe the statute in a fashion that would avoid the need for a federal constitutional ruling or otherwise significantly modify the federal claim, the argument for abstention is strong.

420 U.S. at 84, 95 S.Ct. at 875-876.

Defendant McCullion’s Pullman abstention argument is fatally flawed. He does not argue that construction of one or more of the statutes at issue herein would render Plaintiffs federal constitutional claims moot or otherwise significantly modify them. Indeed, McCullion does not even suggest which of the state statutes are in need of construction for lack of clarity. Also, McCullion does not offer any suggestions to the Court as to what it should order the parties to “repair to State court” to do. Under these circumstances, the Court cannot say that Pullman abstention would “clearly serve an important countervailing interest.”

In Ada-Cascade, the Sixth Circuit discussed Burford abstention at some length.

The final category, of abstention, Bur-ford abstention, derives its name from Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). There the Court upheld abstention where the “exercise of federal review of the [state law] question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River Water Conservation District, 424 U.S. at 814, 96 S.Ct. at 1245. In Burford, the Texas legislature had centralized the administration of a regulatory scheme for oil and gas in one agency, with judicial review in a single state district court in Travis County, Texas. Burford, 319 U.S. at 325-26, 63 S.Ct. at 1103-04. The federal courts inconsistently interpreted state law which required a specialized knowledge of oil and gas matters. This resulted in uncertainty and confusion in the state’s conservation program. The Court found that these circumstances justified abstention and dismissed the action. Id. at 324, 327-31 S.Ct. at 1102, 1104-06.
The Burford abstention, however, is not appropriate “merely because resolution of a federal question may result in the overturning of a state policy.” Zablocki v. Redhail, 434 U.S. 374, 380 n. 5, 98 S.Ct. 673, 678 n. 5, 54 L.Ed.2d 618 (1978); Colorado River Conservation District, 424 U.S. at 815-16, 96 S.Ct. at 1245-46. The State must exhibit an overriding interest in the subject matter. BT Investment Managers, Inc., 559 F.2d [950] at 955 [5th Cir.1977]. Additionally, the state must centralize review in a forum with special competence. See Nasser v. City of Homewood, 671 F.2d 432, 440 (11th Cir.1982). The key question is whether an erroneous federal court decision could impair the state’s effort to implement its policy. Turf Paradise, Inc. v. Arizona Downs, 670 F.2d 813, 820 (9th Cir.), cert. denied, 456 U.S. 1011, 102 S.Ct. 2308, 73 L.Ed.2d 1308 (1982); BT Investment Managers, Inc., 559 F.2d at 955.

720 F.2d at 902.

In Ada-Cascade, the court applied Bur-ford abstention and ordered the cause to be dismissed. Therein, the plaintiffs asserted that the construction of a toxic waste facility by the defendants violated the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. However, central to the resolution of this dispute was the question of whether the defendants had secured proper state permits. In reaching its conclusion that Burford abstention was required, the court noted that the state had an overriding interest in protecting the environment from the degrading effects of unregulated disposal of hazardous wastes which was manifested in a “vigorous and complex administrative procedure for the approval of construction of hazardous waste facilities.” 720 F.2d at 904. The court reasoned that federal courts are ill-equipped to review such state administrative rules and regulations and that to do so would result in unnecessary and disruptive interference with the state’s attempt to deal with the problem of hazardous waste in a coherent fashion.

It is readily apparent that Ada-Cascade and Burford abstention is inappropriate to the present case. This Court has not been called upon to resolve complex questions of Ohio administrative law. Rather, Plaintiff seeks a declaration from the Court that certain Ohio statutes violate equal protection and due process. Burford abstention does not insulate a state statute from federal constitutional challenge when, as herein, there is no issue of state law to be resolved.

(8) Failure to Exhaust Administrative Remedies

Defendant McCullion argues that the Court should dismiss the complaint herein because Plaintiff failed to exhaust its administrative remedies. McCullion argues that Ohio Rev.Code § 119.06 provides Plaintiff with an administrative hearing in the event that his application for a license is rejected. McCullion concludes that since Plaintiff has not applied for a license, it has not exhausted the administrative remedies which are available to it.

This Court does not agree. In making this argument, McCullion fundamentally misconstrues the nature of Plaintiffs complaint. Plaintiff does not challenge the procedures by which it might obtain a license, nor does it assert that the state is in some manner prohibiting it from obtaining a license. Rather, Plaintiffs constitutional challenge is much more basic. Plaintiff contends that the very requirement that it obtain a license violates due process and equal protection. Under these circumstances, the availability of an administrative remedy to Plaintiff, in the event that it applied for a license and was refused, is of little relevance.

(4) Lack of a Case or Controversy

Both Defendants argue that there is not a case or controversy, within the meaning of the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq., between the parties herein. McCullion argues that there is no case or controversy because Plaintiff has declined to apply for a license. Furthermore, both Defendants argue that there is not a case or controversy because Defendant Lewis has said that he would not prosecute Plaintiff under the facts alleged. See Doc. # 14.

Under the facts presented by this case, the Court is forced to disagree. In the Decision and Entry of October 12, 1983 (Doc. # 6), overruling Defendant Lewis’ Motion for Summary Judgment (Doc. # 3), this Court discussed the principles which govern the determination of whether a case or controversy exist for purposes of granting declaratory relief. There is no need to repeat, exhaustively, those standards herein. The overriding precept is that federal courts may not give advisory opinions, whether in the context of a request for a declaratory judgment or otherwise. In Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941), the Supreme Court set forth the familiar standard for determining when a declaratory judgment action presents an actual, live controversy:

The difference between an abstract question and a “controversy” contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

Id. at 273, 61 S.Ct. at 512.

Herein, the Court is firmly convinced that the facts and circumstances demonstrate a substantial controversy between parties having adverse legal interests. Plaintiff has operated its flea market for many years and has rented space to customers so that they could sell their automobiles. When the Ohio General Assembly enacted Ohio Rev.Code § 4517.02(A)(6), it became impossible for Plaintiff to do so without risking criminal prosecution. Plaintiffs customers continue to request space to sell their automobiles but Plaintiff is forced to decline all requests because of § 4517.02(A)(6). The fact that Plaintiff has not sought a license does not mean that this case is not an actual, live controversy, because Plaintiff challenges the requirement that it obtain a license rather than the procedure by which one might be obtained.

Furthermore, the Court does not accept Defendant Lewis’ assertion that he would not prosecute Plaintiff under the facts of this case. Lewis bases this on his reading of the statute and Ohio cases. However, he declines to inform the Court as to precisely what statutes and cases underlie his conclusion. Courts have said that where there is no risk of prosecution, no case or controversy exists. See, e.g., Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (plurality opinion) (Eighty year history of not enforcing criminal statute destroys case or controversy); C.I.O. v. McAdory, 325 U.S. 472, 65 S.Ct. 1395, 89 L.Ed. 1741 (1945) (Explicit agreement between parties not to enforce a criminal statute pending outcome of analogous litigation destroys case or controversy). Herein, there is no such explicit agreement not to prosecute, nor has the Court been shown a long history of non-enforcement of the relevant statutes. On the contrary, Defendant McCullion asserts that if Plaintiff rents space to its patrons to sell their automobiles, it will be subject to criminal sanctions. Moreover, Lewis’ assertion that there is no case or controversy because he will not prosecute rings hollow in light of his subsequent contention that it is the Montgomery County Prosecutor, and not he, who has ultimate responsibility for prosecution of offenses occurring in Harrison Township, the jurisdiction wherein Plaintiff operates its flea market. See Doc. # 23.

Accordingly, the Court concludes that an actual controversy, as opposed to an abstract question, is presented herein. In so doing, the Court hereby overrules Defendant Lewis’ Motion for Reconsideration. (Doc. # 13).

(5) Failure to Join Necessary Parties

Defendant Lewis, in his Supplemental Motion for Summary Judgment (Doc. # 23), seeks dismissal of Plaintiff’s Complaint because Plaintiff failed to join the Montgomery County Prosecutor, the Montgomery County Sheriff’s Department and the Ohio State Highway Patrol. Lewis contends that each of these agencies has enforcement power over the statutes which Plaintiff would have the Court enjoin. Thus, Lewis asserts that Fed.R.Civ.P. 19(a)(1) requires their joinder.

Initially, the Court notes that Lewis does not argue that any of these enforcement agencies is an “indispensible” party under the terms of Rule 19(b). While the Court does not dispute Lewis’ contention that the enforcement agencies are “persons to be joined if feasible,” Rule 19(a), the Court will overrule this motion, because Lewis waived his right to present it by not presenting it in his initial motion.

Rule 12(b)(7) provides that the defense of failure to join a party under Rule 19 may be asserted by motion. In the present case, Defendant Lewis filed a motion prior to serving his answer. See Doc. # 3. Lewis did not raise this defense of failure to join parties in that motion. Moreover, Defendant Lewis did not raise the defense in his answer, which was filed after the Court overruled his initial motion. Rule 12(g) provides that when a party asserts a defense before answering a complaint, that party must assert all defenses which can be raised by motion under Rule 12(b) or the defenses are waived. See also Rule 12(h)(1). Although Rule 12(h)(2) preserves an indispensible party objection, this provision does not apply to persons who are merely necessary parties under Rule 19(a). See 7 Wright & Miller, Federal Practice and Procedure, § 1609. As stated above, Lewis does not argue that any of the enforcement agencies is an indispensible party within the meaning of Rule 19(b). Rather, he argues that they are “necessary parties” within the meaning of Rule 19(a). Accordingly, the Court hereby overrules Defendant Lewis’ Supplemental Motion for Summary Judgment. (Doc. # 23).

(6) Summary

The Court has addressed and rejected each of what the Court calls “defenses” to the Plaintiff’s constitutional arguments. The Court now turns to the merits of the Plaintiff’s claims.

(B) The Merits of the Plaintiffs Claims

In its Motion for Summary Judgment (Doc. # 18), Plaintiff argues that Ohio Rev. Code § 4517.02(A)(6) deprives it of equal protection and due process guaranteed by the Fourteenth Amendment to the United States Constitution. In his Motion for Summary Judgment (Doc. # 19), Defendant McCullion contends that § 4517.02(A)(6) works no constitutional deprivation upon the Plaintiff. Defendant Lewis has not filed a motion for summary judgment addressing the Plaintiff’s constitutional claims despite being directed by the Court to do so. See Doc. # 10. Accordingly, the Court will treat Lewis as having joined that motion filed by Defendant McCullion. The Court will discuss Plaintiff’s equal protection challenge which will be followed by a discussion of Plaintiff’s due process claim.

(1) Equal Protection

In this claim, Plaintiff argues that § 4517.02(A)(6) deprives it of equal protection for the reason that said statutory section requires Plaintiff to obtain a license because he rents space to people wishing to sell their automobiles; whereas, a person who leases real property to a car dealer is not required to obtain such a license. McCullion argues that the distinction is rationally related to a legitimate state purpose.

Ohio has classified persons who lease property to others for the purpose of selling automobiles thereon into two categories: those, such as Plaintiff, who operate flea markets and those who do not. Only those who operate flea markets are required by § 4517.02(A)(6) to obtain licenses. The later group is not subject to a similar requirement. However, this legislative classification neither impinges upon a fundamental right, nor does it create a suspect class. Accordingly, to survive Plaintiff’s equal protection challenge, the classification need only be rationally related to the achievement of a legitimate governmental purpose. G.D. Searle & Co. v. Cohn, 455 U.S. 404, 408, 102 S.Ct. 1137, 1141, 71 L.Ed.2d 250 (1982). See also Salibra v. Supreme Court of Ohio, 730 F.2d 1059, 1063 (6th Cir.1984) (such a classification “need only have a reasonable basis to pass constitutional muster.”). Dillinger v. Schweiker, 762 F.2d 506 (6th Cir.1985). Moreover, statutory classifications which deal with economic matters, such as the one herein, “need not be drawn so as to fit with precision the legitimate purposes animating it.” Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813, 96 S.Ct. 2488, 2499, 49 L.Ed.2d 220 (1976). Furthermore, that Ohio “might have furthered its underlying purpose more artfully, more directly, or more completely, does not warrant a conclusion that the method it chose is unconstitutional.” Id. The burden is not on the Defendants to show that the classification under consideration is rational; rather, the burden is on the Plaintiff to establish that the classification is wholly arbitrary. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364-65, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973).

Herein, Plaintiff concedes that the licensure requirement was passed for the broad purpose of preventing fraud in the sale of automobiles. See Doc. # 18. This is a legitimate state purpose. Additionally, this Court is of the opinion that the classification devised is rationally related to that goal. While the person who leases real property to a car dealer is not required to obtain a license, the dealer himself will be required to have such a license. See Ohio Rev.Code § 4517.02(A). On the other hand, although Plaintiff must obtain a license, his patrons are not required to obtain licenses. Id. Thus, in each situation, one party is required to be licensed. Moreover, there is a real and substantial difference between the lease of property to a car dealer and the business in which Plaintiff engages. It is the dealer, rather than the lessor, with whom the customers will deal. The dealer will have the long-term presence so that customers can return to them if the need arises. However, with a flea market, one of Plaintiffs patrons will sell his or her car and be gone. Plaintiff is the only long-term presence to whom a customer may be able to look. Thus, the State of Ohio requires a licensing of the party to each lease arrangement who will be available for the purchaser of a car to look to for satisfaction. Therefore, the Court concludes that there is a rational basis to support Ohio’s classification. In other words, there is a rational relationship between the means chosen and the desired end, the prevention of fraud in the sale of automobiles.

(2) Due Process

Plaintiff argues that § 4517.02(A)(6) deprives it of substantive due process for the simple reason that when read in conjunction with §§ 4505.18(B) and 4517.03(C), the statutory section under discussion irrationally and arbitrarily prohibits him from leasing space to patrons for them to sell their cars. Plaintiff buttresses his argument that § 4517.02(A)(6) is irrational and arbitrary by pointing out that Ohio does not prohibit flea markets and that it does not prohibit individuals from selling less than six cars a year, as long as they do not make the sales at flea markets.

When faced with a substantive due process challenge to a statutory scheme which regulates the economic sphere, courts must remember that they do not sit as super-legislative bodies passing upon the wisdom of legislative enactments. Hodel v. Indiana, 452 U.S. 314, 333, 101 S.Ct. 2376, 2388, 69 L.Ed.2d 40 (1981). Moreover, in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976), the Supreme Court reiterated that:

It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.

See also, Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 487-88, 75 S.Ct. 461, 464-465, 99 L.Ed. 563 (1955); United States v. Carotene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). To overcome this presumption of constitutionality, the person challenging the statutory scheme must prove that there is no rational relationship between a legitimate government purpose and the means by which the government has sought to further those goals. See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937).

Applying these principles to the present case, the Court concludes that the statute under scrunity herein does not violate substantive due process. Without question, the state’s interest in the prevention of fraud is a legitimate one. This, Plaintiff concedes. Moreover, there is nothing in the record before this Court that would tend to show that the means chosen by Ohio, the practical prohibition on the sale of automobiles at flea markets, is not reasonably related to Ohio’s goal, the prevention of fraud in the sale of automobiles. On the contrary, it is apparent that the potential for fraud exists in flea market sales. Plaintiff’s patrons, those who sell automobiles, will make their sales and be gone. It is quite possible that a purchaser will have no one to whom to look to when problems arise.

Based upon the foregoing, the Court concludes that the statutory scheme under consideration herein violates neither the equal protection nor the due process clauses of the United States Constitution. Therefore, the Court overrules Plaintiff’s Motion for Summary Judgment (Doc. # 18), and sustains Defendant McCullion's Motion for Summary Judgment (Doc. # 19). The Clerk is directed to enter judgment for both Defendants and against the Plaintiff.

The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

      . Additionally, the Court concludes that Plaintiff has not met its burden of showing that the classification created by § 4517.02(A)(6) is wholly arbitrary. On the. contrary, the stipulation of facts contain absolutely no evidence that § 4517.02(A)(6) is arbitrary in whole or in part.