Scott v. Garrard Cnty. Fiscal Court, Civil Action No. 5:08-CV-273-JMH
| Decision Date | 20 January 2012 |
| Docket Number | Civil Action No. 5:08-CV-273-JMH |
| Parties | DONNA SCOTT, Plaintiff, v. GARRARD COUNTY FISCAL COURT, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
On April 26, 2011, Defendants moved to dismiss the above-referenced action based on lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1) and (h)(3). [DE 46]. On May 6, 2011, this Court issued a Memorandum Opinion and Order, [DE 52], in which it rejected Defendants' argument regarding subject matter jurisdiction but opined that Plaintiff's takings and due process claims under 42 U.S.C. § 1983 likely are not cognizable in this Court due to lack of ripeness. Because Plaintiff had not availed herself of post-deprivation remedies available to her under state law, the Court required her to show cause why the matter should not be dismissed without prejudice. Plaintiff has filed a Response to the Court's Show Cause Order, [DE 53], and Defendants have filed a Reply to Plaintiff's Response. [DE 55]. Accordingly, this matter is ripe for decision.
In her Complaint, [DE 1], Plaintiff avers, in addition tovarious state law claims, that Defendants have violated 42 U.S.C. § 1983 by violating her rights under the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution. Specifically, she avers that because Defendants, acting under color of state law, "exercised governmental authority over Plaintiff's private property at the behest and complaint of private individuals who wanted to use the land for their private purposes . . . this amounts to a taking for a private, as opposed to public, purpose" in violation of the Fifth and Fourteenth Amendments. She goes on to aver, however, that "Defendants' conduct with respect to Plaintiff's private property is a physical and a regulatory taking without just compensation in violation of the United States Constitution," suggesting that she bases her takings claim on a public use theory, as well. See Peters v. Fair, 427 F.3d 1035, 1037 (6th Cir. 2005)("The Fifth Amendment's Takings Clause prohibits appropriation of private property for public use only where just compensation is not paid."). She also claims that Defendants' actions deprived her of the due process and equal protection guaranteed to her by the Fifth and Fourteenth Amendments. Additionally, she avers that Defendants' interference with her property rights constitutes an unreasonable seizure forbidden by the Fourth Amendment.
In Plaintiff's Response to the Court's Show Cause Order, [DE 53], she asserts two main arguments. First, she argues that although she did not seek compensation in state court, her claim isnonetheless ripe because Defendants' conduct amounts to a private taking. Second, she argues that even if Defendants' use of her property is considered to be a taking for public use, she is not required to seek compensation through state law remedies because Kentucky provides no reasonable, certain and adequate provision by which she can obtain just compensation. For the following reasons, the Court rejects each of these arguments.
Plaintiff correctly notes that one whose property has been taken by the government for strictly private use does not have to settle for just compensation - these takings are unconstitutional regardless of whether compensation is paid. Montgomery v. Carter Cnty., Tenn., 226 F.3d 758, 766 (6th Cir. 2000). Since state procedures "do not supply the appropriate remedy," a private use claim is ripe for adjudication in federal court even though the plaintiff has not sought relief in state court. Id. Plaintiff's private use claim is therefore ripe. The question that remains is, however, whether Plaintiff's averments of a private taking can survive a 12(b)(6) challenge. While the Court agrees that Plaintiff's private use claim is ripe and that she is able to seek relief from Defendants without resorting to state remedies, the Court is not persuaded that she has set forth averments upon which the Court could conclude that a taking for private use has occurred. In a private takings case, the plaintiff has to show that the "taking had no rational connection to a minimallyplausible conception of the public interest." Id. at 768. Very few takings fail to meet the standard required to show that property has been taken for public use as opposed to private use. As explained by the Montgomery Court:
Examples of a taking for a private use tend to be "esoteric," Gamble v. Eau Claire County, 5 F.3d 285, 287 (7th Cir. 1993), because all that is required for the taking to be considered for public use is a rational relationship to some "conceivable public purpose." See Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 241, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). Very few takings will fail to satisfy that standard. As a result, the examples suggested in the reported cases tend to be highly implausible hypotheticals. See, e.g., Gamble, 5 F.3d at 286 ().
Id. at 765-66. The fact that a taking creates incidental benefits for individual private parties "does not condemn that taking as having only a private purpose." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 243-44 (1984). "The 'public use' requirement is, thus, coterminous with the scope of a sovereign's police powers." Id. at 240.
The Kentucky legislature has clearly set forth that it is part of the sovereign's power to open, close, or maintain a road. For example, KRS 178.115 provides that:
Interestingly, KRS 178.100 provides that:
[f]rom a decision of the fiscal court ordering a new road to be opened, or ordering an alteration or discontinuance of an existing road, or allowing gates to be erected across a road or abolishing existing gates, or a decision refusing any such order, the party aggrieved may bring an action in the Circuit Court of the county where the road is located to contest the decision of the fiscal court.
The Court considers the use of Lanham Lane averred by Plaintiff. In her Complaint, Plaintiff describes how individuals "frequently" use Lanham Lane, apparently both before and after the removal of the gate that she had erected to block access to it. She also avers that after she erected the gate, she received threats from her neighbors and "other members of the community." Further, from both Plaintiff's Complaint and the evidence that has already passed in front of this Court with respect to the parties'earlier motions, the Court is aware that a number of Plaintiff's neighbors, themselves members of the public, have used Lanham Lane to access their property and that, at present, it is used by members of the public other than Plaintiff's immediate neighbors. Plaintiff has made reference to individuals who "go four-wheeling and partying" on it, much to her consternation. In other words, even if the Court assumes that Lanham Lane was Plaintiff's private property prior to the time that her gate was torn down by county officials, Defendants used that opportunity to provide the public with access to the roadway known as Lanham Lane. Whether the road was public for the entire duration of its existence or whether its public nature has been established (or reestablished) since the removal of Plaintiff's gate is a question to be resolved at another time.
Based on Plaintiff's averments, she cannot show that Defendants' alleged taking has "no conceivable public purpose." See Midkiff, 467 U.S. at 241. As the Court already noted in this case, in the Commonwealth, roads are maintained by federal, state, county, municipal, and private means, depending on their status. No one seriously disputes that the establishment and maintenance of roadways for the public is a functional lawfully performed by Garrard County. The question that follows is whether Plaintiff has made any averment that a true private taking has occurred, i.e., that the use of Lanham Lane is limited to one or a small subset ofGarrard County residents who live along it or that title in the real property which comprises Lanham Lane has been transferred to Plaintiff's neighbors by Defendants. The Court answers these questions in the negative. While Plaintiff compares her claims to those presented in Montgomery v. Carter County, Commonwealth Department of Transportation v. Knieriem, 707 S.W.2d...
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