Shellburne, Inc. v. New Castle County

• Decision Date: 04 November 1968
• Docket Number: Civ. A. No. 3537.
• Citation: Shellburne, Inc. v. New Castle County, 293 F.Supp. 237 (D. Del. 1968)
• Parties: SHELLBURNE, INC., a corporation of the State of Delaware, Plaintiff, v. NEW CASTLE COUNTY, C. Douglas Buck, Jr., John D. Daniello, Joseph F. Dayton, Henry Folsom, Harrison E. Frohock, Thomas J. Kealy, Richard Sincock, John J. Smith, and Joseph F. Toner, constituting the County Council of New Castle County, John Autenrieth and Glen Schertz, Defendants.
• Court: U.S. District Court — District of Delaware

293 F. Supp. 237

SHELLBURNE, INC., a corporation of the State of Delaware, Plaintiff, v.NEW CASTLE COUNTY, C. Douglas Buck, Jr., John D. Daniello, Joseph F. Dayton, Henry Folsom, Harrison E. Frohock, Thomas J. Kealy, Richard Sincock, John J. Smith, and Joseph F. Toner, constituting the County Council of New Castle County, John Autenrieth and Glen Schertz, Defendants.

Civ. A. No. 3537.

United States District Court D. Delaware.

November 4, 1968.

COPYRIGHT MATERIAL OMITTED

Donald W. Booker, Booker, Leshem, Green & Shaffer, Wilmington, Del., for plaintiff.

Harvey B. Rubenstein, Asst. County Atty., Wilmington, Del., Clarence W. Taylor, Wilmington, Del., for defendantsNew Castle County and Members of County Council.

Joseph T. Walsh, Wilmington, Del., for defendantsJohn Autenrieth and Glen Schertz.

OPINION

STEEL, District Judge:

Plaintiff brought this action under 42 U.S.C. §§ 1983and1985(3), known as the Civil Rights Act, for alleged violation of his civil rights under color of laws which are constitutionally invalid, and also under the common law to vindicate federally guaranteed rights.Jurisdiction exists under 28 U.S.C. § 1343 (3), (4) and purports to exist under § 1331(a).¹The defendants are New Castle County, the individual members of the County Council, and two individuals, John Autenrieth and Glen Schertz.The conspiracy violation alleged under § 1985(3) is directed only against the last two defendants and is of no immediate concern, since they have filed answers to the amended complaint.²The matter is before the Court upon a motion by the County and by members of its Council to dismiss the complaint for failure to state a cause of action.

In essential part the complaint alleges:

In 1954plaintiff owned 3.78 acres of land which was zoned C-1 for commercial use, and in 1964 received a building permit to build upon it.In January 1967, the New Castle County Council introduced ordinances designed to rezone plaintiff's property for residential use.On May 27, 1968, the County Council, following a hearing on the question, voted to rezone plaintiff's land to R-1-C for residential use.The complaint continues:

"The hearing scheduled above was held on May 27, 1968.No judicial proceedure sic or form was followed; no witnesses were sworn; no testimony was presented in behalf of the County by the County; no cross-examination was provided for counsel; the individuals were allowed to make unsworn and unsupported statements; and no proceedure sic of law was followed.The County Council rezoned the land without discussion or consideration, after attorneys representing the Civic Improvement Associations and other individuals appeared on behalf of those groups.No one appeared for the County Council itself, and no testimony was presented in behalf of the County Council, but the recommendation of the Planning Board was before the said County Council.(See Exhibit "C").Said recommendation fails to cite any change in the conditions for the zoning of the area since the prior zoning in 1954, or any fraud or mistake in the said zoning of 1954."

The complaint further alleges:

The rezoning diminished the value of the land by a minimum of $200,000.The action of the County Council and laws under which it purported to act (9 Del.C. ch. 11, 13 and 26 and particularly § 2611) violated the Fifth and Fourteenth Amendments of the Constitution in that plaintiff was deprived of its property without due process, its property was taken without condemnation or just compensation, and that plaintiff was denied the equal protection of the law.

The complaint prays that the zoning ordinances by which its property was rezoned be adjudged null and void, that damages, including punitive damages, be assessed against defendants, and that the County and its agents and employees be enjoined from interfering with existing building permits or with the granting of a lawful building permit by the building inspector which will enable plaintiff to use his land for commercial purposes.³

The sole contention advanced by defendants under their motion to dismiss is that New Castle County and the members of the County Council are immune from suit under § 1983 of the Civil Rights Act or applicable common law under § 1331(a).

Demands for Relief Under § 1983 of the Civil Rights Act

(a)Against New Castle County:

42 U.S.C. § 1983 provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

A municipal corporation is not a "person" within the meaning of § 1983 and therefore can not be held liable for damages under that section.Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492(1961);Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L. Ed.2d 741(1961).The reasoning of the Court in Monroe v. Pape supports the conclusion that a county is likewise immune from liability for damages under § 1983.Sires v. Cole, 320 F.2d 877(9th Cir.1963);Garrison v. County of Bernalillo, 338 F.2d 1002(10th Cir.1964).

Plaintiff's contention that in view of Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256(1964), andUnited States v. Holmes County, 385 F.2d 145(5th Cir.1967), Monroe v. Pape, is no longer the law, can not be accepted.Neither the Griffin nor the Holmes Countycases involved an action for damages or an interpretation of § 1983.The dictum in Holmes County that a county is a "person" within the meaning of § 1983 is difficult to understand in view of the Monroe v. Pape decision.

Nor can injunctive relief be granted against a municipality under § 1983.SeeMonroe v. Pape, supra, 365 U.S. at 191 n. 50, 81 S.Ct. 473.This is because a municipality is not a "person" within the meaning of § 1983.Thus no relief can be granted against a municipality in a suit under § 1983.It follows by a parity of reasoning that no injunctive or declaratory relief can be granted against a county under that section.

(b)Against Members of the County Council

Defendant members of the County Council are legislators, being invested by the Delaware General Assembly with all the legislative powers of the County, except as otherwise provided by state law.9 Del.C. § 1146.Zoning is a legislative function.Shellburne, Inc. v. Buck, 240 A.2d 757, 758(SupremeCt.Del.1968);Shellburne, Inc. v. Roberts, 238 A.2d 331(SupremeCt.Del.1967).

In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019(1951), the plaintiff sued under 8 U.S.C. §§ 43and47(3), now 42 U.S.C. §§ 1983,1985(3), for damages, compensatory and punitive.He alleged that defendants, an investigating committee of the California Legislature, had deprived him of rights guaranteed under the federal constitution.The Supreme Court held that the legislators had no liability under the Civil Rights Act for the particular action taken.The Court emphasized the long history, both in England and the United States, of "the privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings."341 U.S. 372, 71 S.Ct. 786.The Court continued (341 U.S. at 377, 71 S.Ct. at 788):

"The claim of an unworthy purpose does not destroy the privilege.Legislators are immune from deterrents to the uninhibited discharge of the legislative duty, not for their private indulgence but for the public good.One must not expect uncommon courage even in legislators.The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives.The holding of this Court in Fletcher v. Peck, 6 Cranch, 87, 130, 3 L.Ed. 162, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned."

The Court held that the Civil Rights Act did not overturn the common law immunity of legislators.The Court acknowledged that there might be action by a legislature"of an extraordinary character" which might result in personal liability of legislators, but concluded that the defendants"were acting in a field where legislators traditionally have power to act, and * * * the statute of 1871 does not create civil liability for such conduct."341 U.S. at 379, 71 S.Ct. at 789.

In Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577(1967), the plaintiffs, the Louisiana Civil Rights Organization and its Executive Director, brought an action under §§ 1983and1985(3) against the Chairman of the Internal Security Subcommittee of the United States Senate Judiciary Committee, among others.The plaintiffs alleged that the Chairman had entered into a conspiracy with state officials to seize plaintiffs' property and records.Plaintiffs asked for damages because of the seizure of their property.The Supreme Court affirmed the dismissal of the action.It said, 387 U.S. 84-85, 87 S.Ct. 1427:

"It is the purpose and office of the doctrine of legislative immunity, having its roots as it does in the Speech or Debate Clause of the Constitution, Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377(1881), that legislators engaged `in the sphere of legitimate legislative activity,'Tenney v. Brandhove, supra, 341 U.S. at 376, 71 S.Ct. 783, should be protected not only from the consequences of litigation's results but also from the burden of defending themselves."

In Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288(1967), the Court held that a municipal judge enjoyed absolute immunity from suit...