Kardon v. Hall, Civ. A. No. 74-199.

• Decision Date: 19 December 1975
• Docket Number: Civ. A. No. 74-199.
• Parties: Lester KARDON et al., Plaintiffs, v. Clifford E. HALL, Secretary of the Department of Highways and Transportation of the State of Delaware, et al., Defendants.
• Court: U.S. District Court — District of Delaware

406 F. Supp. 4

Lester KARDON et al., Plaintiffs, v. Clifford E. HALL, Secretary of the Department of Highways and Transportation of the State of Delaware, et al., Defendants.

Civ. A. No. 74-199.

United States District Court, D. Delaware.

December 19, 1975.

Thomas Herlihy, Jr., Morris Cohen, Wilmington, Del., and Melvin Alan Bank, Philadelphia, Pa., of counsel, for plaintiffs.

Johanna D. Drooz Yoffie, Deputy Atty. Gen., Wilmington, Del., for defendants, Hall, Haber and Bewick, Jr.

Joseph M. Bernstein, New Castle County Law Dept., Wilmington, Del., for defendant, Kauffmann.

OPINION

LATCHUM, Chief Judge.

On October 4, 1974 Lester Kardon, Robert Kardon and Helen Kardon Moss, as individuals and trading as co-partners of Ate-Kays Company, filed suit in this court against Clifford E. Hall, Secretary of the Department of Highways and Transportation of the State of Delaware ("DHT"); Richard A. Haber, Director of Highways, DHT; Richard D. Bewick, Jr., Assistant Chief Engineer, DHT; and Samuel Kauffmann, Director of the Department of Development and Licensing of New Castle County, Delaware. The plaintiffs have demanded $2 million in damages because of the defendants' alleged de facto condemnation of plaintiffs' land located in Delaware in violation of plaintiffs' rights under the Fourteenth Amendment and under Article I, § 8 of the Delaware Constitution.¹

Defendant Kauffmann has answered the complaint, disclaiming any responsibility. (Docket Item 3). After the plaintiffs stipulated that defendants Hall, Haber and Bewick "are being sued in their official capacity and not individually," (Docket Item 5), these defendants filed a motion to dismiss the suit against them for lack of subject matter jurisdiction, asserting immunity from suit in federal court on the basis of the Eleventh Amendment.²

From the complaint the following facts emerge. Plaintiffs own approximately 170 acres of land in Newark, Delaware known as Hidden Valley, on which they intend to build a housing development. In August 1973 all of the defendants and plaintiffs reached an agreement that the right-of-way for a portion of a proposed "Newark Ring Road" was to be located along the eastern edge of Hidden Valley. Subsequently, the defendants delegated to a private group known as the "Newark Roads Study Committee" the task of determining the location of the entire right-of-way of the proposed "Newark Ring Road." That group, apparently disregarding the prior agreement reached between the defendants and the plaintiffs, recommended that the "Newark Ring Road" right-of-way traversing Hidden Valley pass through the center of the tract rather than along its eastern edge. The right-of-way recommended by the "Newark Roads Study Committee" was then officially published in a "Future Right of Way Map—Tentative," a step the DHT defendants took in accordance with 17 Del.C. § 145 (rev. 1974) formerly 17 Del.C. § 147, the statutory provision outlining the process by which the right-of-way for certain types of roads is established. The DHT's publication of this tentative right-of-way for a "Newark Ring Road" slicing through Hidden Valley has allegedly destroyed completely the market value of the entire tract of land, but the plaintiffs are unable to force the DHT to acquire Hidden Valley through condemnation proceedings "pursuant to" 17 Del.C. § 145 (rev. 1974) because DHT has not published a "Future Right of Way Map—Final." The DHT defendants contend that a "Newark Ring Road" may never be built, and that if it is ever built, it may not pass through Hidden Valley in the location currently indicated on the "Future Right of Way Map—Tentative." On the other hand, the plaintiffs argue that the DHT's publication of the aforesaid map and its failure to amend it thereafter to conform with the August 1973 "agreement" amounts to a de facto condemnation of all of the land known as Hidden Valley for which plaintiffs are entitled to receive just compensation.

In the alternative, plaintiffs maintain that since a "Future Right of Way Map —Tentative" has already been officially published, the DHT is very likely to condemn that portion of Hidden Valley located within a proposed "Newark Ring Road" right-of-way, in order to forestall a proper fulfillment of their statutory obligations under 17 Del.C. § 145 and that this threat of imminent condemnation of a portion of Hidden Valley has destroyed the value of the entire tract.

The Court's ruling on the motion tendered by defendants Hall, Haber and Bewick will be determined by its answers to the following questions: (1) if the State of Delaware were a defendant to this suit, could it assert Eleventh Amendment immunity, (2) if so, does its absence as a named defendant preclude defendants Hall, Haber and Bewick from also asserting Eleventh Amendment immunity and (3) has there been a waiver of Eleventh Amendment immunity? Edelman v. Jordan, 415 U.S. 651, 662-663, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Gordenstein v. University of Delaware, 381 F.Supp. 718, 720-721 (D.Del. 1974); S. J. Groves & Sons Co. v. New Jersey Turnpike Authority, 268 F.Supp. 568, 570-571 (D.N.J.1967).

The Eleventh Amendment provides:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

Adopted in response to the decision of the Supreme Court in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793) which held that a state is amenable to suit in the federal courts by a citizen of another state to recover damages for the state's refusal to recognize the obligation to pay on its own bonds, the Eleventh Amendment embodies the broad postulate that "the States of the Union, still possessing attributes of sovereignty, shall be immune from suits in the federal courts without their consent." Monaco v. Mississippi, 292 U.S. 313, 322-323, 54 S.Ct. 745, 748, 78 L.Ed. 1282 (1934). And today it is well established that because of the Eleventh Amendment a federal district court lacks subject matter jurisdiction over a complaint seeking damages from a state due to the state's alleged violation of the United States Constitution, the state constitution or statute, or the common law. Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 460-461, 470, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Kennecott Copper Corp. v. State Tax Commission of Utah, 327 U.S. 573, 576, 66 S.Ct. 745, 90 L.Ed. 862 (1946). Likewise, a federal district court lacks subject matter jurisdiction by reason of the Eleventh Amendment whenever a state is the "real, substantial party in interest" defending a suit, although not a named defendant, and the law is clear that a state is the real, substantial party in interest if any damages awarded to the plaintiffs will be paid from the state treasury. Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347 (1945); Edelman, supra, 415 U.S. at 663-665, 94 S.Ct. 1347. The determination of whether a state is the "real, substantial party in interest" is an issue governed by federal law, although in this regard state statutes and case law are of great significance in pinpointing the source of funds which will be used to satisfy any judgment awarded by a court against the named defendant or defendants. Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250-251 (C.A.3, 1969); Gordenstein v. University of Delaware, 381 F.Supp. 718, 720 (D.Del.1974).

Based on a careful examination of applicable Delaware statutes, the Court concludes that the State of Delaware is the "real, substantial party in interest" defending this action. The DHT, which defendant Hall heads, is established pursuant to 29 Del.C. § 8401 (rev. 1974); the Division of Highways is a subdivision of the DHT (29 Del.C. § 8406(1) (rev. 1974)) and is headed by defendant Haber, whose office, Director of Highways, is authorized by 29 Del.C. § 8404(2)(a) (rev. 1974). Defendant Bewick is employed directly by the DHT pursuant to 17 Del.C. § 111(b) (rev. 1974). Here the plaintiffs seek to recover against these three defendants jointly and severally in their official capacities, which means that the funds of the DHT or the Division of Highways rather than the personal assets of these defendants are sought to satisfy any judgment awarded to the plaintiffs. The bulk of the DHT's funding comes directly from legislative appropriations because under 29 Del.C. § 8416 (rev. 1974) "the . . DHT shall be operated within the limitation of the annual appropriation and any other funds appropriated by the General Assembly. Special funds may be used in accordance with approved programs, grants and appropriations." It is true that some of the DHT's funding is derived from the public at large through the sale of bonds or levying of tolls, but monies so raised are strictly segregated for use only in connection with the Delaware Turnpike (17 Del.C. §§ 601-622 (rev. 1974)), which is administered by the Turnpike Division of the DHT. See 17 Del.C. §§ 605, 610, 613 (rev. 1974). Since Hidden Valley does not lie within the boundary of the Delaware Turnpike lands or of other facilities even arguably under the control of the Delaware Turnpike Division, a judgment awarded by this Court would come from the general funds of the DHT and the Division of Highways.

The sum and substance of the above described statutory system for the funding of the DHT and the Division of Highways is that a monetary judgment awarded against defendants Hall, Haber and Bewick, jointly and severally in their official capacities, will drain monies from the state treasury. Consequently the State of Delaware is the "substantial, real party in interest" defending this suit and the Court lacks subject matter jurisdiction unless Delaware has previously waived its Eleventh Amendment protection.

Waiver of Eleventh Amendment immunity is...