Va. State Senate seeks dismissal of Chase civil rights suit

Federal lawsuit filed by state senator objects to her January censure

Published February 15, 2021 by Kate Andrews

In a response to state Sen. Amanda Chase’s lawsuit claiming her civil rights were violated by her political censure last month, attorneys representing the Virginia State Senate and its clerk filed documents Monday seeking the suit’s dismissal under sovereign and legislative immunity protection of the defendants.

Chase’s attorney, Tim Anderson of Virginia Beach, filed suit on behalf of the Republican gubernatorial candidate Feb. 1 in the U.S. District Court in the Eastern District of Virginia. The suit seeks an injunction to prevent Senate Clerk Susan Clarke Schaar from publishing last month’s censure resolution, passed 24-9, in the official journal of the Senate of Virginia.

Chase, R-Chesterfield County, argued that the resolution violated her First Amendment right to freedom of speech and the Equal Protection Clause in the 14th Amendment, after she was censured for her speech and actions over the past two years, including participating in a pro-Trump rally in Washington, D.C., on Jan. 6, hours before supporters of the former president violently breached the U.S. Capitol. The suit also seeks to force Schaar to expunge the record of an earlier version of the censure, which argued that Chase engaged in “fomenting insurrection.”

In Monday’s documents, Solicitor General Toby J. Heytens of the state attorney general’s office argues that the two named defendants — the Virginia Senate and Schaar — are immune from the suit, so the complaint should be dismissed. According to Heytens’ argument, the Senate and the clerk, because she was serving in her official capacity during the censure resolution, cannot be sued under sovereign immunity — a tenet of Virginia law that in essence protects the state from civil lawsuits.

Schaar also is protected by “absolute legislative immunity,” Heytens argues, because she was acting in her professional capacity as “an agent” of the state. Similarly, had Chase sued individual senators, the response says, they too would be protected by legislative immunity under Virginia law.

The motion says also that “the Senate acted entirely consistently with its own rules when considering and approving the resolution of censure.” Attorney General Mark Herring issued an advisory opinion that both the state Senate and the House of Delegates “possesses broad power to discipline and, where it judges appropriate, expel member legislators.” Del. Lee Carter, D-Manassas, and a Democratic gubernatorial candidate, asked the attorney general if the General Assembly could discipline lawmakers who had participated in the Jan. 6 takeover of the Capitol.

According to an order filed by Judge Robert E. Payne on Feb. 3, oral arguments will be held at the federal court in Richmond on March 19.

Chase also has sued the Republican Party of Virginia in the Richmond Circuit Court, seeking an injunction against its May 1 nominating convention to determine candidates for governor, lieutenant governor and attorney general, which she claims is not fair to voters under current pandemic executive orders. A hearing is scheduled Friday, four days before Virginia’s political parties must submit their nominating method to the State Board of Elections on Feb. 23. The state Democratic Party has declared it will hold a primary election in June.