Kerns v. Dukes
| Decision Date | 08 November 1996 |
| Docket Number | Civil Action No. 96-113 MMS. |
| Citation | 944 F.Supp. 1214 |
| Parties | Joseph KERNS and Kathleen Kerns, William M. Torney and Lois A. Torney, Maureen Moyer, and John D. Coffman and Martha Coffman, on behalf of themselves and other similarly situated property owners, 9 Del.C. § 6519 persons and other persons being assessed, Plaintiffs, v. Dale R. DUKES, individually and as Sussex County Government President and Council President, George J. Collins, William D. Stevenson, Sr., George B. Cole and Ralph E. Benson, individually and as Sussex County Council Members, Robert L. Stickels, individually and as Sussex County Administrator, Robert T. Wood, individually and as Sussex County Engineer, Christopher A.G. Tulou, individually and as Delaware Department of Natural Resources and Environmental Control Secretary, Gerald L. Eposito, individually and as a Director of Delaware Department of Natural Resources and Environmental Control, and Edwin H. Clark, II, individually and as then Secretary of Delaware Department of Natural Resources and Environmental Control, Defendants. |
| Court | U.S. District Court — District of Delaware |
Francis J. Trzuskowski, James F. Kipp, and Francis J. Schanne, of Trzuskowski, Kipp, Kelleher & Pearce, P.A., Wilmington, DE, for plaintiffs.
Carl Schnee, and Patricia A. Pyles, of Prickett, Jones, Elliott, Kristol & Schnee Wilmington, DE, Dennis L. Schrader, and Veronica O. Faust, of Wilson, Halbrook & Bayard, Georgetown, DE, for defendants Dale R. Dukes, George J. Collins, William D. Stevenson, Sr., George B. Cole, Ralph E. Benson, Robert L. Stickels and Robert W. Wood.
Kevin P. Maloney, Keith A. Trostle, and David L. Ormond, State of Delaware, Department of Justice, Dover, DE, for State defendants.
Plaintiffs in this putative class action have filed a complaint against various Sussex County officials (the "County defendants") as well as members of the Delaware Department of Natural Resources and Environmental Control (the "DNREC defendants" or "State defendants") in connection with the creation of the West Rehoboth Expansion of the Dewey Beach Sanitary Sewer District. Plaintiffs are landowners in the area of the new sewer district who have been forced to abandon their septic systems and connect to the new sewer district, for which they have been assessed fees and charges.
Plaintiffs assert claims under 42 U.S.C. § 1983 for violation of their procedural and substantive due process rights and under 33 U.S.C. § 1365(a)(2), a citizen-suit provision of the Clean Water Act. Jurisdiction is based on the existence of a federal question, under 28 U.S.C. § 1331.1 In summary, plaintiffs allege that the County defendants did not follow the proper procedures before acting to create the sewer district, most importantly, by failing to submit the proposal for vote by the local residents. Plaintiffs further contend that the County defendants' decision to expand the sewer district was arbitrary and capricious. Plaintiffs also argue that the DNREC defendants failed to cause certain environmental and cost reviews to be performed. Plaintiffs seek injunctive and declaratory relief as well as damages.
Before the Court are defendants' motions for dismissal based on lack of subject matter jurisdiction, or, alternatively, to abstain under the doctrine of Pullman abstention, pending resolution of an uncertain issue of state law. The Court will dismiss plaintiffs' complaint based on equitable restraint grounded upon federal-state comity considerations, and, alternatively, lack of subject matter jurisdiction by reason of the Tax Injunction Act.
There is a genuine risk that nomenclature might obfuscate the crux of the dispute. The dispute centers around the creation of the "West Rehoboth Expansion of the Dewey Beach Sanitary Sewer District." While called an "expansion," the plaintiffs argue that it is a new district contiguous to the Dewey Beach Sanitary Sewer District.
The following facts are as alleged in the complaint. The district was created by Sussex County Council Resolution No. R-013-90, adopted on March 22, 1990. Docket Item ("D.I.") 1, at 8. The proposal for this new district was never put up for a vote. Id. at 9. The proposal had been the subject of a public hearing on November 2, 1989, where objections to it were raised. Id. at 7. A proposal for a similar expansion district had failed twice before when put up for a vote, the most recent failure occurring in 1986. Id.
Following the adoption of the resolution, the DNREC defendants entered into a Memorandum of Understanding with Sussex County, which set up a short construction schedule and which contributed to an alleged failure to perform environmental and cost reviews of the new sewer district project, as required by federal environmental laws. D.I 1, at 9. Plaintiffs urged that to conceal the alleged defects, the DNREC defendants in August 1993, made a "Finding of No Significant Impact" to the environment and a "Finding of No Practicable Alternative" to impacts on Wetlands. Id. at 11. Construction contracts were awarded in May 1993, for approximately $70,000,000. Id. at 12.
In December 1995, the County defendants held a rate hearing. D.I. 1, at 13. Once again, objections to the rates and the construction were voiced. Id. Overriding the objections, the Sussex County Council unanimously adopted the proposed rates. Id. The charges attributed to the new sewer district are as follows:
• $202.00 annual service charge;
• $2.48 per front foot annual collection fee;
• $2.83 per front foot annual transmission and treatment fee;
• $2,808.00 one-time connection charge for connections which occur after the first year;
• $100 permit fee.
The first of such payments became due on February 1, 1996. Id. at 14. Plaintiffs filed their complaint on March 4, 1996.
A brief summary of plaintiffs' claims is essential to understanding the motions before the Court. Plaintiffs' first count, brought under 42 U.S.C. § 1983, alleges violation of plaintiffs' constitutional rights to procedural due process. Specifically, plaintiffs state the County defendants, acting under color of state law, created the sewer district and are forcing plaintiffs to connect to it and pay for it without lawful authority and without procedural due process of law. Their most specific claim is that the County defendants did not hold an election regarding the sewer proposal, allegedly in violation of Delaware law.2 Further, plaintiffs assert, the DNREC defendants created a construction schedule and an environmental review that was in violation of federal procedures and procedural due process.
In Count II, plaintiffs seek relief under 42 U.S.C. § 1983 for violation of their substantive due process rights. They allege the County defendants, acting under color of state law, have acted arbitrarily and capriciously, and without regard to public health, safety and welfare in creating the new sewer district. Such actions, the plaintiffs say, have impinged upon plaintiffs' use and enjoyment of their real property by mandating a financial charge and legal encumbrance as well as limiting, controlling and charging for use of their property. Additionally, plaintiffs urge, the DNREC defendants have acted arbitrarily and capriciously in connection with construction and environmental reviews. Plaintiffs allege the DNREC defendants were delegated and thus became responsible for environmental and cost review under Federal environmental law. Plaintiffs state that the DNREC defendants acted arbitrarily and capriciously, and in bad faith, in making a "Finding of No Significant Impact" ("FNSI") and "Finding of No Practicable Alternative" ("FNPA").
In Count III, plaintiffs invoke, as an additional basis of support for their claims against the DNREC defendants, a citizen-suit provision of the Clean Water Act, 33 U.S.C. § 1365(a)(2).
In Count IV, plaintiffs allege pendent state claims which are not relevant to the motion before the Court.
Plaintiffs seek the following relief:
• a declaration that the sewer district is void;
• injunctive relief against the county's requirement that all residents of the sewer district connect to the sewer system;
• injunctive relief against further construction of the new district;
• injunctive relief against assessments and other charges;
• notice of the injunctive relief;
• attorneys fees and costs under 42 U.S.C. § 1988; • damages;
• any other appropriate legal or equitable relief.
See D.I. 35, at 9-10.
Pursuant to a Stipulation and Order of June 17, 1996, three issues were addressed at oral argument held on October 16, 1996: (A) whether the Tax Injunction Act, 28 U.S.C. § 1341, acts to bar the Court's jurisdiction in this case; (B) whether the Court should stay this matter pending resolution of an unresolved issue of state law, under the doctrine of Pullman abstention; (C) whether plaintiffs may sue under the Clean Water Act, 33 U.S.C. § 1365(a)(2). As noted above, the Court will dismiss plaintiffs' action based on considerations of comity and the Tax Injunction Act. As a result, Pullman abstention and the applicability of the Clean Water Act are not considered.
For more than a century, federal courts have been cognizant of the need for restraint when faced with a case that has the potential of interfering with state tax systems. Notwithstanding that plaintiffs before them may have been grievously wronged, federal courts have recognized that a greater wrong may be done if they become involved. In 1871, the Supreme Court opined:
It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay ... may derange...
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Kerns v. Dukes
...claim was not cognizable against the DNREC defendants. The district court concluded that the suit should be dismissed. Kerns v. Dukes, 944 F.Supp. 1214 (D.Del.1996). Central to the district court's analysis was the determination that the suit was a challenge to the imposition and enforcemen......
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Trading Co. of North America v. Bristol Township
...septic systems, connect to a new city system, and pay charges— including an annual service charge—for the same. See Kerns v. Dukes, 944 F.Supp. 1214, 1216 (D.Del.1996). With little analysis, the district court stated that, under either comity principles or the Tax Injunction Act, the charge......
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Kerns v. Dukes
...Court for the District of Delaware dismissed the suit for lack of jurisdiction based on the Tax Injunction Act. 3 Kerns v. Dukes, D.Del., 944 F.Supp. 1214, 1219-22 (1996). The District Court concluded, in part, that allowing the Property Owners to pursue their claim in federal court would r......
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Reybold Venture Grp., Xi-A LLC v. Del. Dep't of Educ.
...bar that absolutely precludes federal courts from assessing the validity of state or local taxation schemes.’ ” Kerns v. Dukes, 944 F.Supp. 1214, 1219 (D.Del.1996), aff'd,153 F.3d 96, 101 (3d Cir.1998). Moreover, the principles of comity restrict federal courts from interfering in this area......