V - THE ELEVENTH AMENDMENT IS NOT A BAR

TO THIS ACTION

The Eleventh Amendment bars actions against states and their officials in federal court absent consent of the state defendant. However, excepted from this general rule of sovereign immunity is that set forth first in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908), in which the Supreme Court created the exception by asserting that a suit challenging the constitutionality of a state official’s action in enforcing state law is not so barred, reasoning that an unconstitutional statute does not "impart ... immunity from responsibility to the supreme authority of the United States." Id., 209 U.S. at 160, 28 S.Ct. at 454. Young also held that the Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law. Id.; Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426 (1985).

Defendants concede that the Eleventh Amendment does not bar suits seeking to enjoin officials from committing violations of federal law, citing Booth v. State of Maryland, 112 F.3d 139, 142 (4^th Cir. 1997). Actually, it is the continuing violation of federal law which triggers the exception to the general rule. Green v. Mansour, 474 U.S. at 68, 106 S.Ct. at 426; CSX Transportation, Inc. v. Board of Public Works of the State of West Virginia, 138 F.3d 537, 541 (4^th Cir. 1998).

Defendants argue that since the acts complained of in the Complaint are past and not future acts, that the Report has now been published and the Task Force’s functions are at an end, that the action is barred. As argued in the preceding section, this action is not moot and substantial and important relief continues to be sought by the plaintiffs.

Plaintiffs are not seeking prospective relief, nor are they seeking monetary damages or injunctive relief. This case presents an unusual situation of the legislative act at issue carrying no specific mandate for future conduct, but rather, causing the promulgation of a "Report" under the authority of the State after completion of its inquisition into religious minorities, the very existence of which in its present form causes present and continuing harm as to these plaintiffs and to a large number of persons.

The Resolution and its subsequently created Report promote governmental deference to some religion and derogation of others, enumerated as "cults," or worse, the euphemism "destructive groups." In other words, finding that the term cult was offensive, the Task Force invented an even more offensive term to describe what no one reasonably perceives to be anything other than the "cults," including plaintiffs’ religions, the activities of which the Task Force was mandated to investigate.

Put another way, defendants assert that they are immune from federal suit by the publication of an official report, requested by the legislature, in which some types of religion are criticized as harmful to the public good and others elevated as not harmful to the public good. And public institutions are warned to beware of the type of "destructive" religion, which, in the words of the sponsor of the Resolution, is "manipulative, harmful and have as its goal to prey on naive persons rather than praying for the good of one."

Defendants’ acts cause continuing harm, rendering the controversy alive and requiring that defendants’ arguments be rejected by the doctrine of Ex parte Young.

TABLE OF CONTENTS

I - INTRODUCTION

II – STATEMENT OF FACTS

A. Legislative History of the Cult Task Force Resolution
B. The Task Force Report Continued the Violations of Plaintiffs’ Constitutional Rights

III - PLAINTIFFS HAVE STANDING TO BRING THIS ACTION

IV - THIS ACTION IS NOT MOOT

V - THE ELEVENTH AMENDMENT IS NOT A BAR TO THIS ACTION

VI - CONCLUSION