Hogan v. South Lebanon

• Decision Date: 22 April 1991
• Docket Number: No. CA90-05-034,CA90-05-034
• Citation: 73 Ohio App.3d 230,596 N.E.2d 1092
• Parties: HOGAN et al., Appellants, v. VILLAGE OF SOUTH LEBANON et al., Appellees.
• Court: Ohio Court of Appeals

Page 230

73 Ohio App.3d 230

596 N.E.2d 1092

HOGAN et al., Appellants, v. VILLAGE OF SOUTH LEBANON et al., Appellees.

No. CA90-05-034.

Court of Appeals of Ohio, Twelfth District, Warren County.

Decided April 22, 1991.

Christopher J. Cornyn, Springboro, for appellants.

John C. Quinn, Lebanon, for appellee Village of South Lebanon.

Kaufman & Florence and Mark Florence, Lebanon, for appellees James D. Smith, Edward Huddleson, Samuel Ferris, J.C. Napier, Elizabeth Prows and Stanley Rice.

McIntosh, McIntosh & Knabe and Arthur T. Knabe, Cincinnati, for appellee Delbert Sandlin.

PER CURIAM.

Plaintiffs-appellants, Vernon Hogan, Lelia Hogan, Emory Barker, James Mitchem and Darrell Alexander, appeal a decision of the Warren County Court of Common Pleas granting partial summary judgment in favor of defendants-appellees, village of South Lebanon, James D. Smith, Edward Huddleson, Samuel Ferris, J.C. Napier, Elizabeth Prows, Stanley Rice and Delbert Sandlin.

The village of South Lebanon ("the village") is a municipal corporation validly constituted under state law. Appellee James D. Smith is the elected mayor of the village and the remaining appellees are the elected members of the village council.

Appellants Vernon and Lelia Hogan owned and operated a trucking business in the village which involved the use of tractor-trailer or semitrailer trucks. Appellants Barker, Mitchem and Alexander, associates of the Hogans, also owned or operated tractor-trailer or semitrailer trucks in the village.

On February 10, 1988, the village council adopted Ordinance No. 88-12, which provides:

"SECTION 1: All tractors or tractor-trailers or semi-trailers as defined in Sec. 70.01, or any commercial vehicle having six or more wheels, except pickup trucks, shall be operated in the Village of South Lebanon only upon the designated truck routes, except for deliveries and pick-ups.

"SECTION 2. No owner or operator of a tractor, tractor-trailer, semi-trailer or any commercial vehicle with more than six wheels, except pickup trucks, shall park said vehicle within the limits of the Village of South Lebanon, except when making pick-ups or deliveries.

"SECTION 3. Whoever violates this ordinance shall be guilty of a minor misdemeanor and shall be fined not more than $100.00.

"SECTION 4. This ordinance being necessary for the preservation of the health and welfare of the inhabitants of the Village of South Lebanon, it is deemed to be an emergency and shall become effective immediately upon its passage."

Subsequently, appellants Mitchem, Alexander and Barker were cited for violating the ordinance. Each appeared in mayor's court before Mayor Smith, was found guilty and fined. Each paid the fine and court costs. Barker attempted to appeal the conviction to the Warren County Court, but the clerk of mayor's court did not certify the transcript of proceedings to the county court.

On February 10, 1989, appellants filed a complaint against appellees containing two claims for relief. In their first claim for relief, appellants alleged that the ordinance was unconstitutional. In their second claim for relief, appellants alleged that appellees, while acting under the color of state law, deprived them of their civil rights in violation of Section 1983, Title 42, U.S.Code. Specifically, appellants claimed that the ordinance was "intentionally designed and enacted to disrupt" appellants' business.

On October 11, 1989, appellees filed a motion for summary judgment on the second claim for relief, arguing that they were immune from suit under both state and federal law. In response, appellants filed several affidavits purporting to show that Mayor Smith and the village council enacted the ordinance specifically to retaliate against Hogan because of his political opposition to Mayor Smith and that the ordinance was enforced only as to Hogan and his associates. Appellees moved to strike the affidavits because they contained hearsay and therefore would not be admissible as evidence.

On April 4, 1990, the trial court issued a written decision concluding that appellees were immune from suit and that appellants failed to allege or prove by evidentiary materials the inadequacy of state remedies. An entry was subsequently filed granting summary judgment to appellees on appellants' second claim for relief and indicating there was "no just reason for delay" pursuant to Civ.R. 54(B). This appeal followed.

Appellants present two assignments of error for review. In their first assignment of error, appellants state that the trial court erred in granting appellees' motion for summary judgment. Appellants argue that the record does not show that appellees were entitled to absolute immunity as a matter of law. Appellants claim that the record contains facts showing the ordinance was enacted and enforced "in the face of clear knowledge of its illegality and in the absence of jurisdiction as part of a conspiracy involving the mayor and village council members." We find this assignment of error is not well taken.

As a preliminary matter, we would note that appellees argue that they are entitled to immunity pursuant to the Ohio Political Subdivision Tort Liability Act, R.C. 2744.01 et seq. We find this argument to be erroneous for two reasons. First, the act by its very terms does not apply. R.C. 2744.09(E) provides that "[t]his Chapter does not apply to, and shall not be construed to apply to * * * [c]ivil claims based upon alleged violations of the constitution or statutes of the United States * * * [.]" Therefore, this state sovereign immunity statute does not bar actions brought under federal civil rights laws. Wohl v. Cleveland Bd. of Edn. (N.D.Ohio 1990), 741 F.Supp. 688, 690-691. Second, the United States Supreme Court has held that "a state law that immunizes government conduct otherwise subject to suit under § 1983 is preempted, even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy * * *." Felder v. Casey (1988), 487 U.S. 131, 139, 108 S.Ct. 2302, 2307, 101 L.Ed.2d 123, 138; see, also, Martinez v. California (1980), 444 U.S. 277, 283-284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481, 488. Accordingly, we must look to federal law to determine the merits of this case. Martinez, supra, at 283-284, 100 S.Ct. at 558, 62 L.Ed.2d at 488, fn. 8.

We will first discuss whether the village council members are entitled to immunity. In Tenney v. Brandhove (1951), 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019, the United States Supreme Court held that state legislators are absolutely immune from suit under Section 1983, Title 42, U.S.Code for actions undertaken "in the sphere of legitimate legislative activity." Id. at 376, 71 S.Ct. at 788, 95 L.Ed. at 1027. "The claim of an unworthy purpose does not destroy the privilege," as it is "not consonant with our scheme of government for a court to inquire into the motives of legislators * * *." Id. at 377, 71 S.Ct. at 788, 95 L.Ed. at 1027.

In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (1979), 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401, the court extended absolute immunity to members of a state-created regional land planning agency "to the extent the evidence discloses that these individuals were acting in a capacity comparable to that of members of a state legislature." Id. at 406, 99 S.Ct. at 1179, 59 L.Ed.2d at 413. Lake Country Estates expressly left open the question whether local legislators are entitled to absolute immunity under Section 1983 when they carry out legislative functions. Id. at 404, 99 S.Ct. at 1178-1179, 59 L.Ed.2d at 412, fn. 26.

Several circuit courts of appeal have taken Lake Country Estates one step further and held that local legislators are entitled to absolute immunity in Section 1983 suits for conduct undertaken in their legislative capacity. See, e.g., Haskell v. Washington Twp. (C.A. 6, 1988), 864 F.2d 1266, 1277; Healy v. Town of Pembroke Park (C.A. 11, 1987), 831 F.2d 989, 993; Gorman Towers, Inc. v. Bogoslavsky (C.A. 8, 1980), 626 F.2d 607, 611-614.

In Haskell, supra, a doctor sought to open an abortion clinic in Washington Township. At least one of the township trustees opposed abortion and tried various methods to stop the clinic from opening. Eventually, the township trustees passed a zoning resolution which placed abortion clinics in a different zoning classification, B-3. The only area in Washington Township zoned B-3 was fully occupied by a cement company. The doctor filed a Section 1983 suit in federal district court. The district court found the resolution to be unconstitutional, but determined that the trustees were entitled to qualified immunity. On appeal, the Sixth Circuit Court of Appeals reversed on the immunity issue, holding that local legislators are entitled to absolute immunity as long as they are acting in a legislative capacity. It stated: " * * * [T]he key inquiry is obviously in what capacity the individual Trustees were acting at the time of their alleged unconstitutional conduct. * * * [T]he scope of immunity depends on the nature of the activity involved." Id. at 1277-1278. Thus, if local legislators act in a judicial or legislative capacity, they are entitled to absolute immunity. If their conduct is administrative, they are entitled to qualified immunity. If their conduct is neither judicial, legislative nor administrative, they are not entitled to any immunity. The court went on to state:

"In this case, the Trustees contend that they were acting in their legislative capacity when enacting the zoning ordinances in question. Although zoning is ordinarily a legislative activity, it is not always legislative for purposes of immunity. See Cutting v. Muzzey, 724 F.2d 259 (1st Cir.1984) (Members of a municipal planning board were not entitled to absolute immunity when imposing conditions on a developer because of racial animus.). If the underlying...