Case 4:05-cv-00201-HLM Document 27-2 Filed 10/07/2005 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION COMMON CAUSE / GEORGIA, ) et al., ) ) Plaintiffs, ) CIVIL ACTION NO. v. ) 4:05-CV-201-HLM ) MS. EVON BILLUPS, Superintendent ) of Elections for the Board of Elections ) and Voter Registration for Floyd ) County and the City of Rome, Georgia, ) et al., ) ) Defendants. ) BRIEF IN SUPPORT OF DEFENDANT COX S MOTION TO DISMISS INDIVIDUAL CAPACITY CLAIMS Defendant Cathy Cox submits this brief in support of her Motion To Dismiss Individual Capacity Claims. To the extent that the Complaint asserts claims for relief against Defendant Cox in her individual capacity, the Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. I. Statement of Facts This action is a legal challenge to O.C.G.A. 21-2-417, which requires Georgia voters to present to polling officials photographic identification when voting in person at the polls. This amendment was enacted by the Georgia General
Case 4:05-cv-00201-HLM Document 27-2 Filed 10/07/2005 Page 2 of 8 Assembly at its 2005 Regular Session and was signed by Governor Sonny Perdue on April 22, 2005. Following approval of this legislation by the Governor, the Attorney General of Georgia submitted an application for preclearance of the new law to the U.S. Department of Justice, as required by Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. On August 26, 2005, the U.S. Department of Justice informed the Attorney General of Georgia that preclearance had been granted. On September 19, 2005, Plaintiffs filed this action seeking declaratory relief that O.C.G.A. 21-2-417, as amended in the 2005 Regular Session of the Georgia General Assembly and precleared by the U.S. Department of Justice, is unconstitutional on its face and as applied in violation of both the United States and Georgia Constitutions and additionally violates certain federal statutes. Plaintiffs seek a permanent injunction prohibiting Georgia s election officials, including Secretary of State Cox, from implementing the requirements of O.C.G.A. 21-2-417. Plaintiffs also seek a preliminary injunction preventing Georgia officials from requiring photographic identification in this fall s upcoming elections. Plaintiffs assert claims for preliminary and permanent injunctive relief against Secretary of State Cox and the superintendents of elections and members of the boards of elections of six counties in both their individual and official capacities. 2
Case 4:05-cv-00201-HLM Document 27-2 Filed 10/07/2005 Page 3 of 8 Specifically, with respect to Defendant Cox, Plaintiffs allege that she is sued individually and in her official capacity as Secretary of State of the State of Georgia, in which capacity she is the Chair of the State Election Board by O.C.G.A. 21-3-30(d), and has been designated as the Chief Election Official for purposes of the federal Help America Vote Act of 2002 by O.C.G.A. 21-2-50.2, and also the Chief Election Official for purposes of the National Voter Registration Act of 1993 by O.C.G.A. 21-2-210. (Compl. 2(viii).) Plaintiffs request that: the Court enter a preliminary and a permanent injunction pursuant to Fed.R.Civ.P. 65 restraining and enjoining defendants individually and in their official capacities from enforcing or applying the Photo ID requirement in the 2005 Amendment to O.C.G.A. 21-2-417 (Act No. 53, Section 59) to deny plaintiffs or any other registered vote in Georgia admission to the polls, a ballot, or the right to cast their ballots and have their ballots counted in any special, general, run off or referenda election in Georgia because of their failure or refusal to present an official Photo ID required by O.C.G.A. 21-2-417. (Compl., prayer for relief (b), at p. 40-41.) In addition, Plaintiffs seek attorneys fees and costs and such other further relief as may be just and equitable against all Defendants. (Compl., prayer for relief (c) & (d), at p. 41.) II. Argument and Citation of Authority Plaintiffs claims for injunctive relief against Defendant Cox in her individual capacity, and their ancillary claims for attorneys fees, costs, and other general relief 3
Case 4:05-cv-00201-HLM Document 27-2 Filed 10/07/2005 Page 4 of 8 in that same capacity, must all be dismissed as a matter of law. 1 Plaintiffs cannot seek to impose personal liability on Defendant Cox in this case because the requested injunctive relief relates only to her official duties and responsibilities as Secretary of State. Plaintiffs do not seek to recover money damages in this case; rather, Plaintiffs entire suit is of the official capacity type against state and county officials for preliminary and permanent injunctive relief. There is no legal basis for Plaintiffs claims for prospective injunctive relief against Defendant Cox in her individual or personal capacity. Plaintiffs do not and cannot explain how prospective injunctive relief from this Court against Defendant Cox in her personal capacity could protect Plaintiffs alleged constitutional rights. Without her official status, Defendant Cox is powerless to act with respect to voting and elections in Georgia. It is only in her official capacity as Secretary of State and through her official enforcement and application of state and federal election laws that Defendant Cox could possibly assist in performing the activities that Plaintiffs seek to enjoin implementation of the photo identification requirements of O.C.G.A. 21-2-417. 1 This motion to dismiss does not extend to Plaintiffs claims for injunctive relief against Defendant Cox in her official capacity as Secretary of State. See generally Ex Parte Young, 209 U.S. 123 (1908). 4
Case 4:05-cv-00201-HLM Document 27-2 Filed 10/07/2005 Page 5 of 8 Moreover, any potential injunctive relief against Defendant Cox in her individual capacity would be pointless when future secretaries of state in Georgia would not be bound by any such injunction. If Defendant Cox leaves office, Plaintiffs lawsuit would continue against her successor in office only in that successor s official capacity. In fact, one of the hallmarks of official capacity actions is that the successor in office takes the predecessor s place in the litigation. Hafer v. Melo, 502 U.S. 21, 25 (1991) ( [W]hen officials sued in this [official] capacity die or leave office, their successors automatically assume their roles in the litigation. ) (citing Fed. R. Civ. P. 25(d)(1) & Fed. R. App. P. 43(c)(1)). Accordingly, the Court should dismiss all of Plaintiffs claims for injunctive relief to the extent that such claims are asserted against Defendant Cox in her individual or personal capacity. See, e.g., Yoonessi v. State Univ. of New York, 862 F. Supp. 1005, 1012 (W.D.N.Y. 1994) (dismissing the complaint as a matter of law to the extent that it alleged constitutional claims against the individual state defendants in their personal capacities since those persons are powerless to grant such relief ); Crawford v. City of Houston, 386 F. Supp. 187, 192 (S.D. Tex. 1974) (dismissing the claim for injunctive relief against city official defendants in their individual capacities because [a]cting in such a capacity, these defendants are powerless to reinstate plaintiff s employment); Moran v. Chicago Police Dep t, 1994 WL 323246, at *2 5
Case 4:05-cv-00201-HLM Document 27-2 Filed 10/07/2005 Page 6 of 8 (N.D. Ill. June 30, 1994) (dismissing a section 1983 claim for injunctive relief against police officers in their individual capacities because the claim should have been brought as an official capacity suit rather than an individual capacity suit) (citing Akins v. Bd. of Governors of State Colleges & Univs., 840 F.2d 1371, 1377 (7th Cir. 1988)). Furthermore, because Defendant Cox cannot grant the primary relief sought by Plaintiffs in her individual capacity, Plaintiffs ancillary claims for attorneys fees and costs and such other and further relief as may be just and equitable against Defendant Cox personally must also be dismissed. III. Conclusion For the reasons stated herein, Defendant Cox respectfully requests that the Court grant this Motion and dismiss the Complaint with prejudice to the extent that the Complaint contains claims for relief against Defendant Cox in her individual capacity. This 7th day of October, 2005. Respectfully submitted, THURBERT E. BAKER Attorney General Georgia Bar No. 033887 (signatures continued on following page) 6
Case 4:05-cv-00201-HLM Document 27-2 Filed 10/07/2005 Page 7 of 8 Department of Law DENNIS R. DUNN State of Georgia Deputy Attorney General 40 Capitol Square, S.W. Georgia Bar No. 234098 Atlanta, GA 30334-1300 Telephone: 404/656-7298 STEFAN E. RITTER Facsimile: 404/657-9932 Senior Assistant Attorney General dennis.dunn@law.state.ga.us Georgia Bar No. 606950 Troutman Sanders LLP /s/ Mark H. Cohen 5200 Bank of America Plaza MARK H. COHEN 600 Peachtree Street, N.E. Special Assistant Attorney General Atlanta, GA 30308 Georgia Bar No. 174567 Telephone: 404/885-3597 Facsimile: 404/962-6753 mark.cohen@troutmansanders.com Strickland Brockington Lewis LLP /s/ Anne W. Lewis Midtown Proscenium, Suite 2000 ANNE W. LEWIS 1170 Peachtree Street, N.E. Special Assistant Attorney General Atlanta, GA 30309 Georgia Bar No. 737490 Telephone: 678/347-2200 Facsimile: 678-347-2210 awl@sbllaw.net Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1C. /s/ Mark H. Cohen MARK H. COHEN 7
Case 4:05-cv-00201-HLM Document 27-2 Filed 10/07/2005 Page 8 of 8 CERTIFICATE OF SERVICE The undersigned hereby certifies that the within and foregoing Brief in Support of Defendant Cox s Motion To Dismiss Individual Capacity Claims was electronically filed with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to counsel of record for Plaintiffs. The undersigned also certifies that the within and foregoing document was delivered via email to the following non-cm/ecf participants: H. Boyd Pettit, III P. O. Box 1178 Cartersville, GA 30120 hboyd@innerx.net Robert H. Smalley, III McCamy, Phillips, Tuggle & Fordham LLP P. O. Box 1105 Dalton, GA 30722 rsmalley@mccamylaw.com M. Suzanne Hutchinson P. O. Box 580 Calhoun, GA 30703 shutchinson@gordoncounty.com Thomas H. Manning Smith, Shaw & Maddox LLP P. O. Box 29 Rome, GA 30161 tmanning@smithshaw.com This 7th day of October, 2005. L. Branch Connelly Cook & Connelly P. O. Box 370 Summerville, GA 30747 bconn6@wavegate.com Brad J. McFall Gammon, Anderson & McFall P. O. Box 292 Cedartown, GA 30125 bjm@gammonanderson.com Clifton M. Patty, Jr. P. O. Box 727 Ringgold, GA 30736 pattylaw@catt.com /s/ Mark H. Cohen MARK H. COHEN