Knight v. State of New York

• Decision Date: 12 May 1971
• Docket Number: No. 735,Docket 35352.,735
• Citation: 443 F.2d 415
• Parties: Luther KNIGHT, Plaintiff-Appellant, v. STATE OF NEW YORK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

443 F.2d 415 (1971)

Luther KNIGHT, Plaintiff-Appellant, v. STATE OF NEW YORK, Defendant-Appellee.

No. 735, Docket 35352.

United States Court of Appeals, Second Circuit.

Argued April 20, 1971.

Decided May 12, 1971.

William E. Easton, Rochester, N. Y. (Easton & Bittker, Rochester, N. Y., of counsel), for plaintiff-appellant.

Jeremiah Jochnowitz, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of New York, and Ruth Kessler Toch, Sol. Gen., of counsel), for defendant-appellee.

Before FRIENDLY and ANDERSON, Circuit Judges, and LEVET, District Judge.^*

FRIENDLY, Circuit Judge:

This action in the District Court for the Western District of New York results from the procedure under § 30 of New York's Highway Law, McKinney's Consol. Laws, c. 25, whereby title to property which the commissioner of transportation deems necessary for the construction or reconstruction of state highways vests in the State immediately upon the filing of a description and map of the property to be appropriated in the office of the county clerk or register of the county in which the property is situated,¹ without any prior judicial proceeding such as that prescribed for other types of condemnation by Article 2 of the Condemnation Law, McKinney's Consol.Laws, c. 73.

Plaintiff, Luther Knight, a resident of Queenstown, Maryland, brought this action against the State of New York apparently late in 1969. He alleged he was the owner of 101 acres of land in the Town of Greece, Monroe County and that, on or about February 6, 1968, the State "attempted to appropriate" 81 of these acres by filing a notice of appropriation and a map in the County Clerk's office. He further alleged that no notice of appropriation or similar document was served upon him either personally or by mail, although the notice of appropriation showed his address as Queenstown, Maryland, and he would receive mail so addressed; and that on or about July 9 the State attempted to serve notice of the appropriation upon him by filing and recording "a document," presumably the certificate described in § 30, subd. 11 of the Highway Law. The complaint went on to allege that the appropriation was for a section of the Rochester Outer Loop leading to Lake Ontario State Highway; that the project is funded in part with monies furnished by the United States; that a strip not in excess of 400 feet in width sufficed for the Loop except where areas were needed to provide access and that no more than this had been taken both to the south and the north of Knight's property; that, on reaching this, the State "abruptly enlarged its appropriation to widths varying from over 900 feet to over 2,000 feet, depending upon the amount of plaintiff's property available"; and that plaintiff had been left with a strip 40 feet wide and over 2000 feet long without any access to a public highway. On the basis of these claims Knight asserted that the appropriation "was not for a public purpose, was arbitrary, capricious and in bad faith and for the purpose of depriving plaintiff of the use of said property and not for any legitimate public purpose." The prayer was that the court set aside the appropriation, or set aside so much thereof as was not related to the public use and fix compensation for the part properly taken.

The State moved to dismiss, alleging that the court lacked jurisdiction of the subject matter and of the person of the defendant, and that the complaint failed to state a claim upon which relief could be granted. Before the hearing date Knight made a motion to amend the complaint to add as a defendant Theodore W. Parker, the State Commissioner of Transportation.² The district court denied Knight's motion and granted that of the State, declaring "The proper forum for claims that the state has wrongfully appropriated land is the New York State Court of Claims."³

I.

Knight's action against the State fell within the literal prohibition of the Eleventh Amendment. The view, apparently held by Chief Justice Marshall, see Cohens v. Virginia, 19 U.S. (6 Wheat.), 264, 383, 392, 407, 5 L.Ed. 257 (1821), that the Amendment was directed only to the clause of Article III permitting Congress to vest the federal courts with jurisdiction over controversies "between a state and citizens of another state" and not to the clause relating to "all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," was rejected long ago. Louisiana ex rel. Elliott v. Jumel, 107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448 (1883); Hagood v. Southern, 117 U.S. 52, 6 S. Ct. 608, 29 L.Ed. 805 (1886); In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L. Ed. 216 (1887). Indeed, the Court has read the amendment as going beyond its language and has prohibited suit against the state, on constitutional grounds, by one of its own citizens, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

Knight's reliance on the decision of a closely divided Court in Parden v. Terminal Railway of the Alabama State Docks Department, 377 U.S. 184, 84 S. Ct. 1207, 12 L.Ed.2d 233 (1964), as taking his suit against the State outside the bar of the Eleventh Amendment, is misplaced. That case held that when Alabama entered the interstate railroad business, nearly twenty years after enactment of the Federal Employers' Liability Act, 35 Stat. 65 (1908), subjecting every "common carrier by railroad * * * engaging in commerce between any of the several States" to suits, in federal and state courts, for injuries to employees caused by negligence, it waived its Eleventh Amendment immunity pro tanto. Assuming that the highway project here at issue received federal aid under the Federal Highway Act, 23 U.S.C. § 101 et seq., we find nothing in that legislation that could be read as requiring a benefiting state to waive its immunity from suit in federal court for an allegedly illegal taking. See Citizens Committee for Hudson Valley v. Volpe, 297 F.Supp. 809 (S.D.N.Y. 1969); DeLong Corp. v. Oregon State Highway Comm., 233 F.Supp. 7 (D.Or.1964), aff'd, 343 F.2d 911 (9 Cir.), cert. denied, 382 U.S. 877, 86 S.Ct. 161, 15 L. Ed.2d 119 (1965). Apart from the circumstances in Parden that plaintiff was suing on a cause of action expressly created by Congress with the intention, so the Court found, of conditioning the right to operate an interstate railway upon amenability to employees' suits in the federal courts, the decision was doubtless influenced by the fact that the state was engaging in activity, constitutionally subject to congressional regulation, which was generally performed by private persons or corporations, 377 U.S. at 196-198, 84 S.Ct. 1207. Highway construction, by contrast, is a distinctly governmental function.

The parties have not mentioned, in their exceedingly unhelpful briefs, a stronger basis for exempting this action against the State from the Amendment insofar as the complaint seeks to nullify the appropriation in whole or in part. Article 15 of the New York Real Property Actions and Proceedings Law, McKinney's Consol.Laws, c. 81, contains broad authorization for actions to determine claims to "an estate or interest in real property," and § 1541 permits such an action to be maintained "by or against the people of the state of New York." Article 15 proceedings have been held to be a proper means for a landowner to contest the appropriation of his land on the ground that the taking was not for a public use. See Buell v. Genesee State Park Comm., 25 Misc.2d 841, 206 N.Y.S.2d 65 (Sup.Ct. Monroe County 1960); cf. City of Albany v. McMorran, 34 Misc.2d 304, 230 N.Y.S.2d 421 (Sup. Ct., Albany County) rev'd on other grounds, 16 A.D.2d 1021, 230 N.Y.S.2d 438 (3d Dep't 1962).⁴ The availability of this remedy eliminates the concern, which we voiced at argument, over a situation where a state took property without a judicial proceeding and afforded no forum for the owner's testing the issue of public use. However, it is settled law that a state may "give its consent to be sued in its own courts by private persons or by corporations, in respect of any cause of action against it and at the same time exclude the jurisdiction of the Federal courts — subject always to the condition, arising out of the supremacy of the Constitution of the United States and the laws made in pursuance thereof, that the final judgment of the highest court of the state in any action brought against it with its consent may be reviewed or re-examined, as prescribed by the act of Congress, if it denies to the plaintiff any right, title, privilege, or immunity secured to him and specially claimed under the Constitution or laws of the United States." Smith v. Reeves, 178 U.S. 436, 445, 20 S.Ct. 919, 922, 44 L.Ed. 1140 (1900). The question thus becomes one of interpreting the consent given in § 1541 of the Real Property Actions and Proceedings Law. While we have found no New York decision on the point, the Supreme Court has admonished that federal courts ought not "to be astute to read the consent to embrace Federal as well as state courts" and that only a "clear indication" of the state's intention to submit to suit in federal courts will surmount the Eleventh Amendment's bar, Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54, 64 S.Ct. 873, 877, 88 L.Ed. 1121 (1944). See, to the same effect, Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 465-466, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Kennecott Copper Corp. v. State Tax Comm., 327 U.S. 573, 577, 66 S.Ct. 745, 90 L.Ed. 862 (1946). We find no such "clear indication" here.

II.

The question whether the court properly denied leave to amend so that the suit might proceed against the commissioner of transportation is considerably more difficult. It may be useful to begin by narrowing the frame wherein the issue falls. It is altogether plain that if the appropriation had been effected by a suit instituted by the State and...