Cloutier v. Town of Epping
| Decision Date | 16 September 1982 |
| Docket Number | Civ. A. No. 76-311-L. |
| Citation | 547 F. Supp. 1232 |
| Parties | Wilfred CLOUTIER, Mary Cloutier and Pine and Pond, Inc. v. TOWN OF EPPING, Roger Gauthier, Warren Celli, Brendan Splaine, Robert J. Chamberlain, Robert Dodge, Richard Sanborn, Earl Arquette, Patrick Jackson, Harold LaPierre, Roger Vogler, William Callaway and Dorothy Hall. |
| Court | U.S. District Court — District of New Hampshire |
COPYRIGHT MATERIAL OMITTED
Wilfred L. Sanders, Sanders & McDermott, P.A., Hampton, N. H., Robert F. Sylvia, Fine & Ambrogne, Christopher P. Sullivan, Carolan & Sullivan, Boston, Mass., for plaintiffs.
Thomas H. Richards, Sheehan, Phinney, Bass & Green, Manchester, N. H. and Michael J. Donahue, Kearns, Colliander, Donahue & Tucker, Exeter, N. H., for defendant Town of Epping.
G. Wells Anderson, Hall, Morse, Gallagher & Anderson, Concord, N. H., for defendants Dodge, Chamberlain, Gauthier and Splaine.
Ronald L. Snow, Orr & Reno, P. A., Concord, N. H., for defendants LaPierre, Vogler, Sanborn, Callaway & Hall.
John W. Barto, Barto & Gfroerer, Concord, N. H., for defendant Patrick Jackson.
Warren Celli, pro se.
Some general observations on the state of the law in reference to municipalities and their officers is appropriate before applying the law to the operative facts of this case.
There is no question that the decisions of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) have opened wide the gates of Section 1983 liability of municipalities based on an "enterprise" theory, whatever that means. Notably, the United States Supreme Court has not digressed from its position that respondeat superior does not apply in Section 1983 suits as the basis for finding liability of municipalities.1 However, the impact of Monell, in spite of its rejection of respondeat superior as the basis of liability, will increase the number of cases that will be brought under Section 1983.
At the same time, limited defenses, such as qualified immunity, are not available to the cities. Monell does declare, for whatever it is worth, that cities will not be "vicariously" liable for official misconduct which is not sanctioned by "official policy."
It can be said, with some degree of emphasis, that it is not at all clear what the scope of municipal liability will be under Section 1983. However, as Justice Powell stated in his dissent in Owen v. City of Independence, municipalities, in two short years, have gone from absolute immunity under Section 1983 to strict liability. 445 U.S. at 665, 100 S.Ct. at 1422.
These suits against a municipality, as such, are said by some academicians to be, in truth, suits against high-level "policy-making" executive officials who used to enjoy absolute immunity as the municipal enterprise. These officials still have, in their individual capacity, the good faith immunity defense, at least.
It would only confuse the point of this prologue were I to discuss, at great length, the progeny of Monell and Owen. For my purpose here, it is sufficient to point out that this state of affairs has resulted all in the name of deterring, for the most part, non-existent, errant officials. The travesty is compounded by the fact that these municipalities, who could be faced with such broad liability, are, at the same time, being asked to take up the slack in assuming government functions being relinquished by the federal government.
Although it is not expected that the growth of litigation against municipalities will increase in number as dramatically as the Section 1983 prisoner suits have, it will, nevertheless, require a substantial outlay in insurance payments or in direct legal costs and judgments, which, in the end, will be paid by the municipal taxpayer.2 Justice Douglas' observation in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) still is correct that manifestly it is the taxpayer who ultimately pays if the "municipal enterprise" is found to be liable.
The concern of the United States Supreme Court appears to be that municipal government officials should be constrained from inflicting harm on others and, at the same time, these constraints must not interfere with the proper performance of their official duties. The cases growing out of the Monell doctrine are directed at deterrence of municipal officials but, regrettably, have overlooked the drastic burdens placed upon proper performance of official duties. Nor has any account been taken of the chilling effect these decisions may have on recruiting capable citizens to undertake the chores of government, usually for no remuneration, and on inducing capable citizens to run for elected office.3
The municipality is entirely a creation of the state legislature. In due deference to proper federalism, the state laws, and even application of the federal constitution to the actions of the state, should be determined by the state courts. This, of course, had been the prevailing position of the law for a considerable period of time. Even with the advent of federal court intrusion into state affairs by reason of federal constitutional application and post-Civil War acts, abstention was more often than not practiced. Under Section 1983, the state courts, no less than the federal courts, have the obligation to observe the precepts of the federal constitution.
I think it appropriate to say that the decisions do lead putative plaintiffs to believe that there are now two pockets open that of the individual town official and that of the municipality.
The language in several of the leading cases in the area of municipal and city official liability is so convoluted as to cause the reader to overlook threshold elements of federal jurisdiction. If jurisdiction is not present, there simply is no federal forum. The major responsibility of a federal court, it seems to me, where the defendant is an entity of the state, such as a municipality, is to determine whether a substantial federal question is presented and, second, to determine whether the mandates of due process have been satisfied by the defendant. This is particularly so where the fundamental controversy is over land use, a distinctly local matter. To engraft a constitutional dimension on such an acrimonious dispute is an abuse of federal jurisdiction. Yet, such an extension of Section 1983 has been indulged in and urged by federal jurisdiction expansionists.4
Therefore, in the "Epic of Epping," the principal issue before this Court is whether federal jurisdiction has been properly invoked.
The history of this controversy is a lengthy one, the complaint having been filed on October 14, 1976, and having been twice amended. The allegations are broad-based and span a period of nearly a decade. As a consequence, the gist of the present action can best be understood by outlining those allegations.
The action was instituted by Wilfred Cloutier, a resident of the Town of Epping, and a developer and owner of a mobile home park and an apartment building complex, asserting causes of action pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983. The original defendants were the Town of Epping, the Epping Board of Selectmen and the Epping Water and Sewer Commission. The complaint sought the issuance of an injunction to stay the proceedings in the Superior Court of Rockingham County, New Hampshire, which had been instituted by the defendants to restrain plaintiff from developing his lot in West Epping. Plaintiff also challenged the Sewer and Water Commission's denial, on September 1, 1976, of a permit to connect his apartment complex to the municipal sewer system.
This controversy involves claims of a much broader scope than those recited above, as hereinafter noted.
Plaintiff ... alleges that since on or before May 4, 1972, the Town of Epping, its Board of Selectmen, its Planning Board, its Water and Sewer Commission and its Building Inspector have repeatedly denied Plaintiff various permits to develop his real property in Epping, New Hampshire, on the basis of personal bias and malice against the Plaintiff and not upon the basis of a legitimate exercise of lawful authority. The personal bias and malice entertained by said officials is rooted in the Defendants' disapproval of Plaintiff's political efforts and Plaintiff's exercise of his rights protected by the First Amendment to the United States Constitution to accomplish the abolishment of various land use regulations and regulatory boards. The personal bias and malice entertained by said officials against the Plaintiff is also founded upon the Defendants' personal opposition to Plaintiff's efforts to construct multi-family dwelling units and to develop a mobile home park in the Town of Epping. (emphasis supplied)
See Complaint, paragraph 24 (Docket No. 1).5
The complaint was amended on April 20, 1977, to join the individual defendants, Paul Langdon, Robert Dodge and Edward Castle, members of the Board of Selectmen, and Roger Gauthier, Warren Celli, Brendan Splaine and Robert J. Chamberlain, members of the Epping Sewer and Water Commission. Newly-alleged acts included the following:
Central to the majority of the charges plaintiffs level against the defendants is the October 12, 1968 zoning ordinance of the Town of Epping,...
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