Kerns v. Dukes, 96-7751
| Citation | 153 F.3d 96 |
| Decision Date | 24 July 1998 |
| Docket Number | No. 96-7751,96-7751 |
| Parties | Joseph KERNS; Kathleen Kerns; William M. Torney; Lois A. Torney; Maureen Moyer; John D. Coffman; Martha C. Coffman, on behalf of themselves and other similarly situated property owners, 9 Del.C. 6519 persons and other persons being assessed for the payment of the West Rehoboth Expansion of the Dewey Beach Sanitary Sewer District v. Dale R. DUKES, individually and as Sussex County Government President and Council President; George J. Collins, individually and as Sussex County Council Member; William D. Stevenson, Sr., individually and as Sussex County Council Member; George B. Cole, individually and as Sussex County Council Member; Ralph E. Benson, individually and as Sussex County Council Member; Robert L. Stickels, individually and as Sussex County Administrator; Robert W. Wood, individually and as Sussex County Engineer; Christophe A.G. Tulou, individually and as Delaware Department of Natural Resources and Environmental Control Secretary; Gerald L. Esposito, individually and as a Director of Delaware Department of Natural Resources and Environmental Control; Edwin H. Clark, individually and as then Secretary of Delaware Department of Natural Resources and Environmental Control Joseph Kerns and Kathleen Kerns, William M. Torney and Lois A. Torney, Maureen Moyer, John D. Coffman and Martha C. Coffman, individually and as representative Plaintiffs on behalf of the certified class, Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Francis J. Trzuskowski, James F. Kipp, Francis J. Schanne (argued), Trzuskowski, Kipp, Kelleher & Pearce, Wilmington, DE, for Appellants.
Carl Schnee (argued), Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, DE, Dennis L. Schrader, Veronica O. Faust, Georgetown, DE, for Appellees Dale Dukes, George J. Collins, William D. Stevenson, George Cole, Ralph E. Benson, Robert L. Stickels, Robert W. Wood.
Keith A. Trostle, Department of Justice, Wilmington, DE, for Appellee Christophe A. Tulou.
Kevin P. Maloney, Department of Natural Resources, Dover, DE, for Appellee Gerald L. Esposito.
David L. Ormond, Jr., Department of Justice, Wilmington, DE, for Appellee Edwin H. Clark.
Before: SLOVITER and ROTH, Circuit Judges, and POLLAK, District Judge. *
This appeal presents the question whether a suit in the District Court for the District of Delaware brought by certain Delaware property owners challenging assessments charged to them to provide for an expanded sewer system is barred either by the Tax Injunction Act, 28 U.S.C. § 1341--which provides that "[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State"--or by principles of comity. Because we find that the district court properly dismissed the suit, we affirm the judgment of the district court.
This civil action challenges decisions taken by the defendants--members and officials of the Sussex County Council ("the County defendants"), and officials of the Delaware Department of Natural Resources and Environmental Control ("the DNREC defendants")--to (1) authorize the establishment of the "West Rehoboth Expansion of the Dewey Beach Sanitary Sewer District" and (2) take subsequent steps to implement such authorization. The plaintiffs--appellants in this court--are several persons owning real property in the expanded sewer district ("the Property Owners"). The Property Owners allege that, by virtue of the establishment of the expanded sewer district, they are being compelled to discontinue reliance on their own septic systems and, in lieu thereof, to join the expanded sewer system and to pay an array of service charges and fees for the privilege of obligatory participation in the expanded sewer system.
The complaint sets forth three counts arising under federal law. The first count, based upon 42 U.S.C. § 1983, alleges deprivations by the County defendants of the Property Owners' Fourteenth Amendment rights to procedural due process; this count undergirds the Property Owners' most strongly argued claim--namely, that under Delaware law the establishment of the expanded sewer district could be legally accomplished only pursuant to a vote (an "election") of the affected Property Owners, a procedural step not taken in this instance. The second count, also based upon 42 U.S.C. § 1983, alleges that the actions of the County defendants and the DNREC defendants have infringed upon the Property Owners' Fourteenth Amendment rights to substantive due process: the Property Owners contend that the defendants' actions were not based on any rationally supportable public health concerns and that they "have impinged upon the [Property Owners'] use and enjoyment of their real property by mandating a financial charge and legal encumbrance thereon, as well as limiting, controlling, and charging for the use of said property." Complaint at p. 15. The third count, undertaking to set forth a claim pursuant to 33 U.S.C. § 1365(a)(2), the civil enforcement provision of the Clean Water Act, 1 alleges that the DNREC defendants failed to perform certain federally mandated environmental and cost reviews. 2
The Property Owners brought this suit as a proposed class action, alleging their readiness to represent an estimated 7000 persons said to be similarly situated. The complaint recites that, by way of relief:
Plaintiffs request, for themselves and all other members of the class, that:
A. The rights of the class members to have an election on the establishment of the "West Rehoboth Expansion of the B. The defendants and each of them be temporarily and permanently restrained and enjoined from requiring members of the class to connect to the unlawfully created sewer district and from charging or assessing said members of the class for the costs of creating, constructing, maintaining and operating said sewer district (and any debt thereon), unless and until such time as the sewer district is lawfully created by election and compliance with 9 Del.C. Ch. 65, after proper environmental and cost review, and from any further construction of said sewer district, or creation of new debt thereon, without further order of the Court;
Dewey Beach Sanitary Sewer District" be adjudicated and declared, and that the prior unlawfully decreed Sewer District be declared void ab initio;
C. The defendants be Ordered to notify all persons, within the said sewer district, of their right to refuse to connect and/or to disconnect, and the right to receive a refund, if exercising said right, of any capitalization fees previously paid and/or any quarterly rates or other fees and costs paid regarding said sewer district.
D. The plaintiffs be awarded attorneys' fees and other applicable costs or fees pursuant to 42 U.S.C. § 1988;
E. The plaintiff class be awarded money damages incident to the equitable relief requested and such moneys be placed in trust. Such monies shall be sufficient to compensate the plaintiff class members for any liability and costs incurred on the new sewer district, including but not limited to costs of connections, fees previously paid by the plaintiffs to the defendants plus interest, and to pay for any debt created from construction of the sewer district; and
F. Plaintiffs have such other legal and equitable relief as the Court may deem appropriate, including costs and expenses. 3
Complaint at pp. 19-20 (emphases in original).
In the district court, the defendants moved to dismiss all or part of the suit--or, in the alternative, to stay the suit pending state court resolution of state law questions--on a variety of grounds. Defendants chiefly argued that: 1) the Tax Injunction Act () was a bar to the district court's subject matter jurisdiction; 2) principles of comity required dismissal of the suit; and 3) the Clean Water Act 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 enforcement of taxes: as noted above, the suit seeks inter alia to enjoin the defendants "from charging or assessing said members of the class for the costs of creating, constructing, maintaining and operating said sewer district (and any debt thereon)." As a challenge to a local taxation scheme, the suit was found by the district court to run afoul both of federal comity principles and of the Tax Injunction Act, 28 U.S.C. § 1341. The district court went on to state:
This holding does not put an end to plaintiffs' chances of prevailing on their lawsuit in the state court system. All arguments made by plaintiffs before this Court may be made in a state court.
Id. at 1222. In an order dated November 8, 1996, the district court dismissed the action for lack of subject matter jurisdiction and the Property Owners appealed to this court.
On appeal, the Property Owners contended that: Appellants' Brief p. 34. After oral argument, and because the resolution of this appeal potentially implicated a question of Delaware law, this court issued an order certifying a question to the Supreme Court of Delaware. 4
Our certification order read, in relevant part; 5
There are two crucial issues on appeal. As to the first, without now deciding the...
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