Lerman v. City of Portland

• Decision Date: 11 December 1987
• Docket Number: Civ. No. 85-0374-P.
• Citation: 675 F. Supp. 11
• Parties: Russell E. LERMAN, Plaintiff, v. CITY OF PORTLAND, et al., Defendants.
• Court: U.S. District Court — District of Maine

675 F. Supp. 11

Russell E. LERMAN, Plaintiff, v. CITY OF PORTLAND, et al., Defendants.

Civ. No. 85-0374-P.

United States District Court, D. Maine.

December 11, 1987.

Robert H. Furbish, Smith & Elliott, Saco, Me., for plaintiff.

William J. Kayatta, Jr., Portland, Me., for defendants.

ORDER ON PENDING MOTIONS

GENE CARTER, District Judge.

In this action, Plaintiff seeks to recover damages for the demolition of his buildings on India Street in Portland by the City of Portland. Plaintiff alleges, inter alia, that the demolition constituted a deprivation of due process under the United States and Maine Constitutions, a taking of property without just compensation under both Constitutions, a violation of 42 U.S.C. § 1983, and a trespass on his property in violation of 14 M.R.S.A. § 7552. Defendant City of Portland has moved to dismiss both the federal and the state law claims and for an order in limine concerning the measure of damages.

The Trespass Claim

Defendant first argues that Plaintiff's claim for damages under Maine's trespass statute is precluded by the immunity provisions of the Maine Tort Claims Act, 14 M.R.S.A. § 8101-8118. Specifically, section 8103 provides in pertinent part: "Except as otherwise expressly provided by statute, all governmental entities shall be immune from suit on any and all tort claims seeking recovery of damages." Although exceptions to immunity are set forth in 14 M.R.S.A. § 8104, none of them can be even broadly construed to deal with the circumstances of this case. Similarly, the trespass statute under which Plaintiff is proceeding makes no reference to a waiver of immunity.¹ Thus, by the express terms of section 8103, the City is immune from suit on Plaintiff's statutory trespass claim.

Plaintiff makes several arguments against such a construction. First, he asserts that because Plaintiff's trespass cause of action is constitutionally based it cannot be abrogated by statute. For this argument he relies primarily on a New Jersey case holding that a malicious prosecution action based on alleged due process violations could proceed against the state despite a tort claims act immunity provision. See Strauss v. State, 131 N.J.Super. 571, 330 A.2d 646 (1974). The Court disagrees with Plaintiff's characterization of his claim in this Court as being founded on the constitution; it is founded upon the Maine trespass statute. The same action realleged in other counts asserts claims founded on the Maine and United States Constitutions. As the Court understands the Strauss case, the malicious prosecution claim in question was not statutorily based and thus fell into the explicit exception to immunity under the New Jersey Tort Claims Act for claims founded on the state or United States Constitutions.

Plaintiff also argues that municipalities were not immune to suit under the trespass statute, 14 M.R.S.A. § 7552, prior to enactment of the Maine Tort Claims Act, Michaud v. City of Bangor, 159 Me. 491, 196 A.2d 106 (1963), and that the statute cannot be read to expand the doctrine of sovereign immunity as it had existed prior to its judicial abrogation. The Court is persuaded for a number of reasons that this argument is incorrect.

First, the legislative history of the Maine Tort Claims Act indicates, as Defendant suggests, that it was intended to provide sweeping governmental immunity except when liability was provided for by statute. Although not determinative on legislative intent, the Judiciary Committee Report on the Act and the legislative debate, see, e.g., 2 Legis.Rec. 1644 (1977) (Remarks of Senator Collins), indicate that the immunity imposed by the Act was to be comprehensive with the exceptions tightly circumscribed. That this was indeed the intent of the legislature is borne out by the language of the statute itself. "Except as otherwise expressly provided by statute...." (Emphasis added.)

Plaintiff suggests that because the legislative record and statement of fact for the Tort Claims Act speak of "restoring" and "re-imposing" governmental immunity, the intention was to reestablish it as it was just prior to its abrogation in Davies v. City of Bath, 364 A.2d 1269 (Me.1976). This interpretation is belied by the provision in chapter 2, section 5 of Laws 1977, which stated: "For claims arising after the effective date of this Act and before July 1, 1977 the effective date of section 8104, setting forth the exceptions to immunity, exceptions to section 8103 shall be permitted to the same extent as provided by the common law of Maine existing prior to October 12, 1976." This provision clearly distinguishes between the exceptions available under the common law and those provided by the new statute.²

Although the Maine Law Court has not had the opportunity to address the issue of sovereign immunity as it applies to section 7552, the Court predicts that when presented with the opportunity, the Law Court will follow its recent practice of narrowly limiting governmental liability to areas where it is expressly provided by statute. See, e.g., Clockedile v. State Department of Transportation, 437 A.2d 187 (Me.1981); Rivard v. City of Lewiston, 516 A.2d 555 (Me. 1986); Goodine v. State, 468 A.2d 1002 (Me.1983); Cushing v. Cohen, 420 A.2d 919 (Me.1980). The Court does not accept Plaintiff's assertion that prior judicial construction becomes part of the express wording of the statute. Using this theory, Plaintiff states that because it had, before passage of the Tort Claims Act, been construed to apply to government entities as well as other defendants, section 7552 expressly provides for liability.³ Such a mode of statutory construction would be inconsistent with the approach heretofore taken by the Law Court in applying the Maine Tort Claims Act: "In Maine, sovereign immunity is the rule, and liability for governmental entities is the statutorily created, narrowly construed exception." Clockedile, 437 A.2d at 189 (emphasis added). The Court finds the Superior Court decisions to the contrary unpersuasive. See Pollard v. County of Cumberland, No. CV-83-1034 (Me.Super.Ct., Cum.Cty., Feb. 28, 1984); St. Peter v. City of Presque Isle, No. CV-79-144 (Me.Super.Ct., Aro.Cty.1979).

Finally, Plaintiff argues that the Maine Tort Claims Act was not in effect on December 9, 1979, when his buildings were demolished by the City of Portland, because of various legislative enactments and repeals of so-called sunset provisions. The Court accepts the well-reasoned analysis provided by the Attorney General in his opinion letter of January 14, 1980, which concluded that the provisions of the Maine Tort Claims Act in question here have not expired and were at that time in full force and effect.

Since the City of Portland is immune from suit under 14 M.R.S.A. § 7552 by virtue of the immunity provisions of 14 M.R.S.A. § 8103, the Court will dismiss Count V of the Complaint.

Statute of Limitations

Defendant also argues that Plaintiff's claims based on the Maine Constitution are barred by the statute of limitations. Defendant urges that the Court apply either of two statutes: the three-year limitation set forth in 14 M.R.S.A. § 868 for actions to recover damages caused by "the taking of any land, rights or other property to be used for a public purpose when such taking has been authorized by the legislature"; or the two-year limitation found in the Maine Tort Claims Act, 14 M.R.S.A. § 8110, for "every claim against a governmental entity ... permitted under this chapter." Plaintiff argues that section 868 is not applicable because it deals with actions seeking redress for takings accomplished under the power of eminent domain while the city's action here was under the police power. He argues that the Tort Claims Act limitation does not apply because it applies only to actions there permitted and the constitutional claims arise independently of the Tort Claims Act.

The Court agrees with Plaintiff that neither of these statutes applies. Section 868, while applying to actions seemingly very close to the one brought here (actions for the taking of land, authorized by the legislature) also specifies that the land taken is to be used for a public purpose. This clearly refers to the state's power of eminent domain and not the police power, the exercise of which Plaintiff here complains.

The Maine Tort Claims Act limitation is equally inapplicable because constitutional claims are not "permitted" under the Act; they survive it and arise independently of it because statutes may not abrogate constitutional rights.

Although neither of these statutes is directly applicable, Defendant, citing an 1881 case, Perkins v. Maine Central Railroad, 72 Me. 95, 99 (1881), urges the Court to adopt one of them because the actions to which they pertain are the most analogous to the actions brought here. The Court cannot accept this argument, for Maine has a general statute of limitations for civil actions which provides that "all civil actions shall be commenced within 6 years after the cause of action accrues and not afterwards...." 14 M.R.S.A. § 752. The Court of Appeals for the First Circuit, which has recently examined the Maine statutes of limitations in depth, has emphasized that section 752 is a general limitations provision and not merely a residual one. Small v. Inhabitants of City of Belfast, 796 F.2d 544, 547 (1st Cir.1986). As the court stated: "It is plainly apparent from the language of this provision as well as from its application by the Maine courts that section 752 is applicable to all tort actions, including personal injury tort actions, except where the Maine legislature has specifically provided otherwise in a separate statutory provision. Id. (Emphasis added.)

Since there is no specific, separate statutory limitations provision dealing with tort claims brought under the Maine Constitution, the Court finds the general six-year limitation statute applicable. Plaintiff's buildings allegedly were...