Hemperly v. Crumpton, Civ. A. No. 88-T-248-N.

• Decision Date: 10 November 1988
• Docket Number: Civ. A. No. 88-T-248-N.
• Citation: 708 F. Supp. 1247
• Parties: J.W. HEMPERLY, et al., Plaintiffs, v. Robert B. CRUMPTON, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

708 F. Supp. 1247

J.W. HEMPERLY, et al., Plaintiffs, v. Robert B. CRUMPTON, et al., Defendants.

Civ. A. No. 88-T-248-N.

United States District Court, M.D. Alabama, N.D.

October 19, 1988.

On Motion to Alter, Amend or Vacate November 10, 1988.

Fred D. Gray, Tuskegee, Ala., Von G. Memory, Montgomery, Ala., for plaintiffs.

J. Fairley McDonald, III, Copeland, Frnaco, Screws & Gill, Jerry Carpenter, Asst. Atty. Gen., State Finance Dept., Legal Div., Alabama State House, Montgomery, Ala., for defendants.

MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

The court presently has before it defendants' motion to dismiss filed April 5, 1988. Concluding that plaintiffs' federal claims are presently not ripe for adjudication, the court determines that the defendants' motion is meritorious and should be granted.

I.

Plaintiffs allege that they are property owners who own or possess an interest in property located in the City of Montgomery, Alabama. They claim that defendants, the State Building Commission, its director, and its individual members, intend to condemn the property to build state offices. Invoking this court's jurisdiction pursuant to 28 U.S.C.A. § 1343(a)(3) and § 1343(a)(4), plaintiffs have alleged deprivations of their rights under the fourteenth amendment and 42 U.S.C.A. § 1983 and § 1988.¹ They seek declaratory and injunctive relief to enjoin defendants from the alleged, threatened condemnation.

Plaintiffs' allegations concern a proposed plan by the defendant Building Commission to place the newly designed Alabama judicial facility on their property. In substance, plaintiffs allege that defendants were originally going to place the judicial facility on other state-owned property until the City of Montgomery intervened. According to plaintiffs' complaint, the city wanted the judicial facility to be located closer to "downtown Montgomery." Plaintiffs allege that the city convinced the Building Commission to place the judicial facility on their property by agreeing to furnish $2,500,000.00 to the Building Commission to use in purchasing or condemning this new site.

Plaintiffs contend that the Building Commission's decision to build the judicial facility on their property is arbitrary and capricious. They argue that no public notice was given to them that their property was under consideration, that they were not provided an opportunity to speak with the Commission about its proposed plan, and that the Commission's decision was made without the benefit of any surveys, cost comparisons, or analysis. Moreover, plaintiffs allege that the Building Commission has no need to use their property as the site for the judicial complex, and that the Commission has arbitrarily and capriciously threatened to condemn their property. This, plaintiffs claim, violates several of their constitutional rights: (i) the right to receive procedural due process; (2) the right to receive substantive due process; (3) the right not to have property taken for a non-public use; and (4) the right to receive equal protection under law. In addition, plaintiffs allege several pendant claims of violations of Alabama statutory and constitutional law.²

II.

In defendants' motion to dismiss, defendants first argue that the eleventh amendment bars this court from considering all claims against the Building Commission, and all state claims against Crompton in his official capacity. Plaintiffs respond by arguing that defendants' arguments "have been laid to rest many years ago by this Court," and cite two opinions published over 17 years ago. While plaintiffs are correct that the issue defendants raise has "been laid to rest," they completely ignore the decisions of the Supreme Court and of the Eleventh Circuit during the past decade which have resolved this issue in a manner contrary to plaintiffs' stated position. For example, in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam), the Supreme Court held that a suit for injunctive relief filed against the State of Alabama and the Alabama Board of Corrections was barred by the eleventh amendment, unless the state had consented to the filing of the suit. Id. Finding that there was no showing that the state or the Board of Corrections had consented to the suit, and that no consent could be given under Art. I, § 14 of the Alabama Constitution,³ the Supreme Court concluded that the State of Alabama and the Board of Corrections must be dismissed from the action. Id., at 782, 98 S.Ct. at 3058.

The holding of Alabama v. Pugh is directly applicable in this matter. There can be no serious question as to fact that the Building Commission is an agency of the State of Alabama. See 1975 Ala.Code § 41-9-141. Consequently, the eleventh amendment bars plaintiffs from bringing this action against the Building Commission.

Additionally, the eleventh amendment bars any consideration of plaintiffs' state law claims against the individual defendants in their official capacity. As the Eleventh Circuit observed, the Supreme Court's decision in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ("Pennhurst II"), precludes this court from considering claims that a state official is acting in violation of state constitutional and statutory law:

A claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.... This principle applies as well to state-law claims brought into federal court under pendent jurisdiction. ...

Silver v. Baggiano, 804 F.2d 1211, 1213 (11th Cir.1986) (quoting Pennhurst II, 465 U.S. at 121, 104 S.Ct. at 919) (citations omitted).

III.

This leaves only plaintiffs' federal constitutional claims against the individual members and director of the State Building Commission. Addressing first plaintiffs' claims that the Building Commission's actions (1) constitute a taking for a non-public purpose, (2) pose a threat to plaintiffs' right to substantive due process, and (3) deny plaintiffs equal protection of law, the court concludes that these claims are not ripe for disposition. See Williamson County Regional Planning v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). The court notes that, at present, no taking of plaintiffs' property has occurred; indeed, condemnation proceedings have not even been initiated. While plaintiffs have received a bid from the Building Commission for their property, they do not and cannot claim that defendants have actually taken their property. See Agins v. City of Tiburon, 447 U.S. 255, 263 n. 9, 100 S.Ct. 2138, 2143 n. 5, 65 L.Ed.2d 106 (1980) (pre-condemnation activities cannot be considered a "taking" in the constitutional sense); Danforth v. United States, 308 U.S. 271, 285, 60 S.Ct. 231, 236, 84 L.Ed. 240 (1939). See also United States v. 2,175.86 Acres of Land, 696 F.2d 351, 355 (5th Cir.1983) ("the mere commencement of straight condemnation proceedings, where the government does not enter into the possessions during those proceedings, does not constitute a taking").

As no deprivation of property has occurred, plaintiffs' fourteenth amendment taking claim⁴ is obviously premature. Cf. Williamson County Regional Planning Commission, 473 U.S. at 193 n. 13, 105 S.Ct. at 3120 n. 13 ("because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied") (emphasis in original); Henley v. Herring, 779 F.2d 1553, 1555 (11th Cir.1986) (ripeness is peculiarly a question of timing). But see Rosenthal & Rosenthal Inc. v. New York State Urban Development Corp., 605 F.Supp. 612, 615 (S.D. N.Y.), aff'd on other grounds, 771 F.2d 44 (2nd Cir.1985) (per curiam), cert. denied, 475 U.S. 1018, 106 S.Ct. 1204, 89 L.Ed.2d 317 (1986). If, as plaintiffs allege, there is no public purpose that would be served by a taking of their property, plaintiffs can raise that issue if and when defendants actually attempt to take their property. See 1975 Ala.Code §§ 18-1A-90 et seq. (Supp.1988).⁵

Plaintiffs' substantive due process claim fares no better. The first requirement in proving a violation of substantive due process in the context of a § 1983 action is that there must be a deprivation of a federal constitutionally protected interest. Rymer v. Douglas County, 764 F.2d 796, 801 (11th Cir.1985). While it is undisputed that plaintiffs have a federal constitutionally protected right to own the property in question, defendants have not yet done anything to deprive them of this right.

Equally unavailing at the present moment is plaintiffs' fourteenth amendment equal protection claim. The only action that plaintiffs contend that the Building Commission has taken is to notify plaintiffs of its desire to acquire their property. Such an offer to acquire property simply does not rise to the level of a violation of equal protection.⁶

IV.

Plaintiffs' procedural due process claim that defendants decided to condemn their property without first conducting a hearing on the matter is without merit. Again, it is important to note that plaintiffs are not alleging that the state eminent domain procedures that may be utilized to take their property are constitutionally inadequate, see supra, at p. 1250 n. 5; rather, they are alleging that they should have been granted a hearing prior to the alleged selection of their property as the site of the new judicial facility.

The decision to exercise the power of eminent domain is, in the first instance, strictly a legislative decision. Berman v. Parker, 348 U.S. 26, 32-34, 75 S.Ct. 98, 102-103, 99 L.Ed. 27 (1954). The determination of whether land is needed to satisfy a "public use" is at the zenith of a sovereign's police power. Hawaii Housing Authority v. Midkiff, 467 U.S. at 241, 104 S.Ct. at 2329. There is no constitutional requirement that the legislature or other...