Kitchen v. Crawford

Decision Date29 June 1970
Docket NumberCiv. A. No. 13356.
Citation326 F. Supp. 1255
PartiesWilliam C. KITCHEN v. James M. CRAWFORD, Chairman of Atlanta-Fulton County Joint Zoning Board.
CourtU.S. District Court — Northern District of Georgia

G. Seals Aiken, John L. Respess, Jr., Atlanta, Ga., for plaintiff.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, Ga., for Joe and Lois Chambers, Shiflett, Ristau & Watts.

Harold T. Sheats and John Tye Ferguson, Atlanta, Ga., for defendant.

ORDER

EDENFIELD, District Judge.

The County Commissioners of Fulton County, Georgia, have refused to issue plaintiff a zoning permit for a trailer park in an area zoned for agriculture. Furthermore, they have initiated prosecution of plaintiff pursuant to Ga.Laws, 1952, p. 2689, on the grounds that plaintiff installed a trailer on his land in violation of the 1965 amendment to the 1955 Fulton County Zoning Resolution. Plaintiff alleges jurisdiction in this court under 28 U.S.C.A. § 1343(3). He claims damages under 42 U.S.C.A. §§ 1983 and 1985(2), (3); he also requests declaratory and injunctive relief because the above-mentioned law and resolution allegedly violate the Federal and Georgia Constitutions. The details are set out below as they become relevant.

By amendment to his complaint, plaintiff requested a three-judge court as provided for by 28 U.S.C. § 2281. The statute challenged by plaintiff (Ga. Laws 1952, p. 2689) is not a statute of general application throughout the State. Consequently, a three-judge court cannot properly be convened. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967).

Plaintiff alleges jurisdiction under 28 U.S.C. § 1343(1), (2) and (3) and grounds his claim of jurisdiction under 28 U.S.C. § 1343(3) on his claim for damages and injunctive relief under 42 U.S. C. § 1983 and his claim for declaratory relief under 28 U.S.C. § 2201. The gravamen of these claims is that the state zoning statute and county zoning resolutions pursuant to which plaintiff's requested permit was refused deny plaintiff equal protection of the law and due process of law as guaranteed by the Fourteenth Amendment. In addition, plaintiff alleges that the arbitrary action of the county officials in denying the zoning permit also infringes plaintiff's Fourteenth Amendment rights.

Plaintiff's alleged basis for jurisdiction under § 1343(3) is somewhat questionable because of Justice Stone's statement, concurring in Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), that a district court had jurisdiction under 28 U.S.C. § 41(14) now 28 U.S.C. § 1343(3) of cases where plaintiffs alleged the infringement of a constitutional right "whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights. * *" 307 U.S. at 531, 59 S.Ct. at 971. This statement has served as the basis for courts concluding, especially in cases challenging state taxation laws, that 28 U.S. C. § 1343(3) does not give jurisdiction in cases where the underlying right is capable of valuation. See, e. g., Bussie v. Long, 383 F.2d 766 (5th Cir. 1967); Abernathy v. Carpenter, 208 F.Supp. 793 (W.D.Mo.1962) (three-judge), aff'd. 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409 (1963). Though the taxation cases do involve rights that are particularly capable of valuation, the property rights-civil rights distinction is not applied with comparable facility in all cases. As one note-writer has observed, the application of the civil rights-property rights distinction might be awkward in the case of a professional speaker who contends his right to free speech was violated, or a person who claims he is the victim of a discriminatory hiring practice. Note, The "Property Rights" Exception to Civil Rights Jurisdiction—Confusion Compounded, 43 N.Y.U.L.Rev. 1208 (1968). Indeed in Hague Justice Stone specifically acknowledged Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915), in which the Court sustained the district court's jurisdiction of an alien's claim that an Arizona law limiting the employment of aliens, denied complainant equal protection of the law. Though this complaint could arguably be valued, Justice Stone said, "The gist of the cause of action was not damage or injury to property, but unconstitutional infringement of a right of personal liberty not susceptible of valuation in money." 307 U.S. at 531, 59 S.Ct. at 971. Though the Supreme Court's affirmance without opinion of Abernathy v. Carpenter, supra, is arguably an approval of the application of the civil rights-property rights distinction in determining § 1343(3) jurisdiction, the Court has not had occasion to apply the distinction in one of its opinions since Justice Stone's concurrence in Hague.

However, a district court considering its § 1343(3) jurisdiction in the Fifth Circuit is not writing on a clean slate but rather on a palimpsest. In McGuire v. Sadler, 337 F.2d 902 (5th Cir. 1964), the plaintiff alleged the Texas Land Commissioner and others conspired to fraudulently deprive plaintiff of his land. The Fifth Circuit held the district court had jurisdiction under 28 U.S.C. § 1343 (3) as well as § 1331 though the damage was capable of valuation. In Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), the plaintiff alleged the denial of her liquor license violated plaintiff's Fourteenth Amendment right to due process and equal protection of the law. The Court noted that plaintiff had not sought to invoke § 1331 jurisdiction and concluded § 1343(3) jurisdiction was present. In Mansell v. Sanders, 372 F.2d 573 (5th Cir. 1967), the plaintiff alleged that the method by which the County Commissioners denied plaintiff's application for a garbage franchise denied plaintiff due process and equal protection of the law. The court noted no federal question jurisdiction was alleged and concluded the district court had jurisdiction under § 1343(3). In Holloway v. Department of Housing and Urban Development, 418 F.2d 242 (5th Cir. 1969), plaintiffs claimed deprivation of due process of law in the administration of tenant regulations in public housing. The district court viewed the matter as a breach of contract suit and dismissed the complaint for lack of subject matter jurisdiction. The Fifth Circuit reversed, holding the complaint alleged a cause of action under 42 U.S.C. § 1983 and noting that "jurisdiction, in that event, is premised on 28 U.S.C.A. § 1343(3)." 418 F.2d at 243.

In the cases set out above, the land, liquor license, garbage franchise, and tenant's rights do not seem inherently incapable of valuation. However, in each of these cases the court focused on the allegations regarding the method by which these rights were ultimately deprived. In McGuire, the court stated that if the alleged "procedural shortcomings are found to have existed and if indeed they deprived the plaintiff of a fair and adequate hearing, these findings would seem sufficient for a showing of a Fourteenth Amendment violation." 337 F.2d at 906. In Hornsby the Court stated that, "The role of the courts is to ascertain whether the manner in which this determination denial of liquor license was or is made accords with constitutional standards of due process and equal protection." 326 F.2d at 612. In Mansell, the Court reversed the district court's dismissal for lack of jurisdiction because the complaint gave notice that "there may have been an application of the Act by the defendant Commissioners in such a way as to deny due process of law and equal protection of the law." 372 F.2d at 576. In Holloway, the Court said the district court had § 1343(3) jurisdiction to consider claims "involving the procedures used in the treatment of tenants in public housing." 418 F.2d at 243.

Two Fifth Circuit cases have indicated limits on the trend away from the civil rights-property rights distinction evidenced in McGuire, Hornsby, Mansell, and Holloway. In Bussie v. Long, 383 F.2d 766 (5th Cir. 1967), plaintiffs alleged that the Louisiana authorities' failure to equalize tax assessments violated plaintiffs' Fourteenth Amendment rights to equal protection and due process of law. Jurisdiction was alleged under § 1343(3). The Fifth Circuit in Bussie affirmed the district court's dismissal for lack of jurisdiction because it concluded "that a complaint seeking to enjoin the collection of taxes is not a suit within the purview of 42 U.S.C.A. § 1983 since only a property or monetary right is involved." 383 F.2d at 766. While resurrecting the property rights-civil rights distinction, the Bussie holding by its own terms is limited to cases involving tax assessments. The Court acknowledged that Hornsby and Mansell had allowed § 1343 jurisdiction in cases involving "property rights," and did not reverse these holdings. Rather the Court in Bussie stated "we do not believe that their holdings Hornsby and Mansell can be extended to a cause of action involving tax assessments * * *" 383 F.2d at 769. The second case which indicates some hesitancy on the part of the Fifth Circuit to abolish completely the civil rights-property rights distinction is Atlanta Bowling Center, Inc. v. Allen, 389 F.2d 713 (1968). In Atlanta Bowling Center, plaintiff alleged the denial of a liquor license infringed plaintiff's Fourteenth Amendment rights to due process and equal protection of the law. The jurisdictional provision relied upon is not identified, though the opinion indicates plaintiffs were relying on Hornsby and thus § 1343(3). In a footnote to the opinion the Court states that the question of whether to apply the civil rights-property rights distinction in determining § 1343(3) jurisdiction has not been resolved in the Fifth Circuit because "the jurisdictional dollar amount under 28 U.S.C.A. § 1331 invariably is satisfied. * * *" in the cases in which the question has arisen. 389 F.2d at 715-716, n. 9. This conclusion concerning the presence of jurisdictional amount is questionable in light of the...

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