DONOHOE C. CO., INC. v. Maryland-National CP & P. Com'n

• Decision Date: 29 July 1975
• Docket Number: Civ. No. Y-74-1210.
• Citation: 398 F. Supp. 21
• Parties: DONOHOE CONSTRUCTION COMPANY, INC. v. The MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION et al.
• Court: U.S. District Court — District of Maryland

398 F. Supp. 21

DONOHOE CONSTRUCTION COMPANY, INC. v.The MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION et al.

Civ. No. Y-74-1210.

United States District Court, D. Maryland.

July 29, 1975.

Roy I. Niedermayer, Washington, D. C., for plaintiff.

Barbara A. Sears, Silver Spring, Md., Charles Rand, Rockville, Md., for defendants.

MEMORANDUM AND ORDER

JOSEPH H. YOUNG, District Judge.

The plaintiff, complaining that the defendants have jointly promulgated zoning plans, ordinances, and building-permit decisions which have effected a taking of its North Park Avenue property in Bethesda, Maryland, seeks declaratory relief and an award of just compensation for the property allegedly taken.As originally filed, the plaintiff's Complaint asserted that its cause of action arose directly under the Fourteenth Amendment of the Federal Constitution and that this Court had jurisdiction over the subject matter by virtue of 28 U.S.C. §§ 1331and1332.Motions to dismiss filed by defendants Commission and Board were denied by Memorandum and Order of March 21, 1975.On its own motion, the Court noted a potential abstention problem with the case and ordered memoranda from the parties addressed to that question.¹The defendants have now answered the Complaint; they and the plaintiff have filed the required memoranda; and the plaintiff has offered a new motion to amend his Complaint to drop his allegation of diversity jurisdiction, add a cause of action under 42 U.S.C. § 1983, and assert new jurisdictional bases for the action—28 U.S.C. §§ 1343and2201.

I. PLAINTIFF'S MOTION TO AMEND

Turning first to the plaintiff's motion to amend, the Court has no problem with plaintiff's request to drop the diversity allegation.There is no such jurisdiction in this Court if, as plaintiff now declares, it is a Maryland corporation.The allegation that this Court has jurisdiction by virtue of the Declaratory Judgment Act, 28 U.S.C. § 2201, may be disposed of with equal facility — though adversely to the plaintiff.Section 2201 is not a jurisdictional grant.SeeSkelly Oil Co. v. Phillips Petroleum Co.,339 U.S. 667, 671-72, 70 S.Ct. 876, 94 L.Ed. 1194(1950).

The plaintiff's attempt to fit its complaint within the confines of the Ku Klux Klan Act of 1871, presently codified as 28 U.S.C. § 1343(3)and42U.S.C. § 1983, poses more of a problem.It has been clear since Lynch v. Household Finance Corporation,405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424(1972), that the Ku Klux Klan Act may be invoked where property rights are concerned as well as when personal rights are it issue.It is equally clear, however, that municipal corporations are not "persons" for the purposes of the substantive half of the Act, 42 U.S.C. § 1983, both where claims of damages are made, seeMonroe v. Pape,365 U.S. 167, 187-91, 81 S.Ct. 473, 5 L.Ed.2d 492(1961), and where equitable relief is sought, seeCity of Kenosha v. Bruno,412 U.S. 507, 513, 93 S.Ct. 2222, 37 L.Ed.2d 109(1973).The Court will take judicial notice of the fact that Montgomery County is a municipal corporation under Maryland law.SeeMd. Ann.Code art. 23A, § 9(1973 Repl.Vol.).The County is therefore not a "person" under the Ku Klux Klan Act and neither is its legislative arm, the County Council.It may be that the Commission and/or the Planning Board could be considered "persons" for Ku Klux Klan Act purposes and that there would be no Eleventh Amendment problem in reaching them.Cf.Arnold v. Prince George's County,270 Md. 285, 292 n. 1, 311 A. 2d 223, 227 and accompanying text (1973).Since section 1983 is the door through which this Court's subject matter jurisdiction under section 1343(3) is to be reached, it does not have jurisdiction, insofar as the County and County Council are concerned, under section 1343(3).The Court reaches no conclusion as to the Commission and Planning Board.If the plaintiff wishes to pursue the matter, it may do so by providing an additional memorandum in support of its position.Finding subject matter jurisdiction under section 1343(3) is not essential, however, since the Court does have subject matter jurisdiction over all of the defendants under 28 U.S. C. § 1331.²

II.ABSTENTION

With the plaintiff's withdrawal of its assertion of diversity jurisdiction, the Court is left with an abstention problem that has been considerably simplified.³The abstention question which remains is but a variation on the classic theme of Railroad Comm'n of Texas v. Pullman Co.,312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971(1941).

Abstention of the Pullman variety becomes a consideration in cases where state action is challenged in federal district court as being contrary to the Federal Constitution and there are questions of state law present which may be dispositive of the case.SeeC. Wright, Law of Federal Courts§ 52, at 196 (2d ed. 1970).The starting point for the doctrine is the premise of Siler v. Louisville and Nashville R. R. Co.,213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753(1909), providing that where a controverted question of state law underlies a question of federal constitutional law, federal courts will decide the state law question first in order to avoid the potential federal constitutional question.If state law is unclear, to the extent that the highest state court has not ruled upon it, the federal court will abstain until state law is clarified.Only if the plaintiff does not prevail on the state law question will the district court take up the federal constitutional issue.SeeField, supra note 1, at 1077-78;Note, Judicial Abstention from the Exercise of Federal Jurisdiction, 59 Colum.L.Rev. 749, 753-56(1959).

The customary Pullman case involves an unclear state statute or administrative order.This case differs from the norm.Viewing the plaintiff's allegations in their most favorable light, the plaintiff asserts that the defendants have made a number of decisions regarding the zoning of its land and the issuance of building permits for its property which have precluded all reasonable use of the property by the plaintiff or its sale to another.The plaintiff therefore seeks a declaration that the defendants have taken its property in violation of its Fourteenth Amendment rights under the Federal Constitution, and it also demands just compensation for the property it claims has been taken.The abstention problem thus posed is not one of unclear statutory law.It is instead the much more troublesome problem of unclear state constitutional law, for, as the Court pointed out to the parties in its earlier Memorandum and Order, Maryland's constitution and Declaration of Rights also forbid the taking of private property without compensation.See Md.Declaration of Rights art. 19;Md. Const. art. III, §§ 40 & 40A.

Where non-constitutional questions of unclear state law are concerned, there are essentially three requirements which must be met before the federal courts will abstain: (1) State law must be unclear; (2) It must be subject to an interpretation that will avoid the federal constitutional question; and (3) There must be available an adequate state proceeding for obtaining resolution of the state law issue.SeeField, supra note 1, at 1088 n. 74 and accompanying text.Where state constitutional law is concerned, however, the focus changes somewhat.

Most state constitutions have a number of provisions, e. g., a due process or equal protection clause or its equivalent, which are patterned on federal constitutional rights and have been interpreted in a manner which conforms to the Supreme Court interpretation of their federal constitutional counterparts.⁴On the other hand, there are provisions in state constitutions that are unique to the individual state.Thus, state constitutional law questions in the abstention context fall into two categories — those cases where the stateconstitution is the mirror of the federal and those where the stateconstitution reflects purely local legal development.

The Supreme Court recognizes a distinction between these two categories of cases in its treatment of abstention where state constitutional issues are involved.Four decisions by the Court provide some illumination — City of Meridian v. Southern Bell Tel. & Tel. Co.,358 U.S. 639, 79 S.Ct. 455, 3 L.Ed. 2d 562(1959);Reetz v. Bozanich,397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68(1970);Wisconsin v. Constantineau,400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515(1971);andAskew v. Hargrave,401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196(1971).The Ninth, Seventh and Second Circuits have examined these four cases and concluded that Meridian and Reetz stand for the proposition that abstention will be required where state constitutional law is uncertain and unique but will not be required in cases like Constantineau where federal and state provisions track one another.SeeDrexler v. Southwest DuBois School Corp.,504 F.2d 836, 839(7th Cir.1974)(en banc);Stephens v. Tielsch,502 F.2d 1360, 1361 nn. 1 & 2 and accompanying text (9th Cir. 1974);Reid v. Board of Educ.,453 F.2d 238, 244(2d Cir.1971).Unfortunately, Hargrave does not fit comfortably into such an analysis.As Ninth Circuit Judge Choy noted:

In Hargravethe plaintiff challenged an educational taxing scheme on equal protection grounds.In a brief per curiam the Court ordered abstention.It is not clear that what the Supreme Court wished the state courts to initially decide was a claim based on the state's counterpart to the equal protection clause.However, it does seem likely that there were non-mirror state issues in the case, for otherwise it certainly would have been appropriate for the Court to have discussed Constantineau . . ..Even were that not so, there is a critical difference between Hargrave . . . and Constantineau . . ..In Hargrave another action making the same challenge was pending in the Florida courts, a factor on which the Court relied.There was then "a substantial and immedia

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