Stern v. Halligan

• Decision Date: 07 October 1998
• Docket Number: No. 97-5506,No. 95-3885,No. 95-,95-,95-3885,97-5506
• Parties: Steven B. STERN; Michele Stern; The Lorenzo Trust, v. Francis X. HALLIGAN, Jr.; Jeffrey W. Flatt; Berkeley Township; Berkeley Township Municipal Utilities Authority, v. Francis X. HALLIGAN, Jr; Berkeley Township, Third-party plaintiffs, v. Michael Peter SCILLITANI, Third-party defendant (Trenton D.C. Civilcv-03449). Steven B. STERN; Michele Stern; The Lorenzo Trust, v. Francis X. HALLIGAN, Jr; Jeffrey W. Flatt; Berkeley Township; Berkeley Township Municipal Utilities Authority, v. Francis X. HALLIGAN, Jr., Berkeley Township, Third-party plaintiffs, v. Michael Peter SCILLITANI, Third-party defendant (Trenton D.C. Civil3885). Steven B. Stern, Michele Stern, The Lorenzo Trust, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 729

158 F.3d 729

Steven B. STERN; Michele Stern; The Lorenzo Trust, v. Francis X. HALLIGAN, Jr.; Jeffrey W. Flatt; Berkeley

Township; Berkeley Township Municipal Utilities Authority, v. Francis X. HALLIGAN, Jr; Berkeley Township, Third-party plaintiffs, v. Michael Peter SCILLITANI, Third-party defendant (Trenton

D.C. Civil No. 95-cv-03449).

Steven B. STERN; Michele Stern; The Lorenzo Trust, v. Francis X. HALLIGAN, Jr; Jeffrey W. Flatt; Berkeley

Township; Berkeley Township Municipal Utilities Authority, v. Francis X. HALLIGAN, Jr., Berkeley Township, Third-party plaintiffs, v. Michael Peter SCILLITANI, Third-party defendant (Trenton

D.C. Civil No. 95-3885).

Steven B. Stern, Michele Stern, The Lorenzo Trust, Appellants.

No. 97-5506.

United States Court of Appeals, Third Circuit.

Argued July 16, 1998.

Decided Oct. 7, 1998.

L. Gilbert Farr (Argued), Manahawkin, NJ, for Appellants.

Patrick Sheehan (Argued), Toms River, NJ, for Appellees--Berkeley Township and Francis X. Halligan, Jr.

John J. Sheehy (Argued), Sheehy & Sheehy, Jersey City, NJ, for Appellees-- Berkeley Township Municipal Utilities Authority and Jeffrey W. Flatt.

Before: BECKER, Chief Judge, STAPLETON, and WEIS, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Plaintiffs Steven and Michele Stern, and Michele Stern's brother Michael Scillitani (as trustee), each own real property in Berkeley Township, New Jersey, which is served by privately-owned well water. Defendant Berkeley Township Municipal Utilities Authority ("BTMUA"), pursuant to local ordinances, ordered the plaintiffs to connect to the municipal water supply and, through various enforcement proceedings, placed a lien on the trust property administered by Michael Scillitani when he refused. Plaintiffs brought suit against BTMUA, the Township, and local officials, alleging that the mandatory connection requirement is unconstitutional, at least as applied to them, because it is beyond the powers of a municipality; because it constitutes a taking; and because it unlawfully forces them into an unwanted contract. The plaintiffs wish to avoid a connection to the municipal water supply with its attendant costs and to continue using their private wells for drinking and other household purposes. The district court granted summary judgment for the defendants, finding that there was a rational basis for the ordinances. We affirm.

I. Facts and Procedural History

Berkeley Township Ordinance 90-16-OAB requires that, within 90 days after a BTMUA water supply line is made available, property owners must hook up their buildings to the municipal system and must also permanently disconnect their private wells from the potable water supply for the buildings. See Berkeley Township, N.J., Ordinance 90-16-OAB § 2 (Apr. 23, 1990). The ordinance also allows BTMUA to make any required connection, installation, or well sealing if an owner fails to do so after receiving notice. The owner can be charged for such actions, and the charges will be a lien on the owner's property until they are paid. See 90-16- OAB § 9. A second ordinance similarly authorizes BTMUA to charge property owners for connection and service charges "after the homeowner has received all notices to hook up to the water system and the time period for ... connection has expired." Berkeley Township, N.J., Ordinance 94-23-OAB § 128-21 (June 28, 1994).

In 1994, both the Sterns and the trust received notice that BTMUA was to provide their properties with connection to the municipal water supply. In due course, both the Sterns and the trust received notice that the 90-day period for connecting to the water supply had expired and that they would be liable for all connection and service charges. In 1995, BTMUA issued summonses charging the trust with failure to connect to the water supply pursuant to township ordinance 94-23-OAB. A lien was imposed on the trust property. The plaintiffs then filed virtually identical pro se petitions in the district court for "a writ of protection" alleging violations of 18 U.S.C. § 241, 42 U.S.C. §§ 1985(3) & 1983, and the Fifth and Ninth Amendments to the United States Constitution.

The defendants are BTMUA; the Township; Francis X. Halligan, Jr., the municipal court judge in Berkeley Township who arraigned Scillitani pursuant to the 1995 summonses; and Jeffrey Flatt, the BTMUA plant supervisor who issued the summonses. The defendants moved for summary judgment, which the district court granted. The plaintiffs, now represented by counsel, appeal only the ruling as it applies to their §§ 1983 and 1985 claims. ¹

II. The Substantive Due Process Claim

The plaintiffs contend that Township Ordinance 90-16-OAB, which requires residents to hook up to the public water supply when it becomes available and to discontinue the use of well water in the home, violates the United States Constitution because their well water is "safe and pure." ² They do not identify precisely what parts of the Constitution are thereby implicated, though we understand them to be making the claim that the ordinance is irrational and therefore violates substantive due process. In their reply brief, the plaintiffs also appear to invoke a general right to be free from government action by quoting Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1922). Even if this claim had been preserved, ³ we do not consider the right to be free from municipal water connections to be part of the right to privacy as it has developed since Meyer. See Town of Ennis v. Stewart, 247 Mont. 355, 807 P.2d 179, 182 (Mont.1991) (rejecting an identical claim).

We have made clear that when "general economic and social welfare legislation" is alleged to violate substantive due process, it should be struck down only when it fails to meet a minimum rationality standard, an "extremely difficult" standard for a plaintiff to meet. Knight v. Tape, Inc., 935 F.2d 617, 627 (3d Cir.1991). The only question is "whether the law at issue bears any rational relationship to any interest that the state legitimately may promote," id.; simple unfairness will not suffice to invalidate a law. The challenger bears the burden of proving irrationality. See Lindsey Coal Mining Co. v. Chater, 90 F.3d 688, 694 (3d Cir.1996).

The plaintiffs have not met their burden. Protecting the health, safety, and general welfare of township inhabitants, the goal of the challenged ordinances, is plainly in the public interest. Private wells can be unsafe for a disturbingly long list of reasons. Potential dangers include: carcinogenic radon, radium-226, and radium-228; ⁴ salt from road-salting stockpiles or saline aquifers; pesticides; fertilizers; explosive methane; MTBE (a gasoline additive); fuel from leaking underground tanks; bacteria-laden waste from leaking septic tanks, broken sewer lines, pets, farm animals, or wildlife; and chemical or other hazardous waste. See Roger M. Waller, U.S. Geological Survey, U.S. Dep't of Interior, Ground Water and the Rural Homeowner 20-30 (1994). Furthermore, private wells are generally shallower than public supply wells and thus more easily contaminated.

These potential harms provide ample justification for government action to safeguard citizens. Because pure water is a precondition for human health, regulating the water supply is a basic and legitimate governmental activity. See City of Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923); City of Newark v. Department of Health, 109 N.J.Super. 166, 262 A.2d 718 (N.J.Super.Ct.App.Div.1970). A municipal water supply replaces a myriad of private water sources that may be unmonitored or, at best, difficult, expensive, and inefficient to monitor. Therefore, a legislature may rationally conclude that a public water supply is the simplest and safest solution for its citizenry as a whole without proof of danger to each and every affected person. The danger is significant, the burden of connecting to nearby waterlines is not great, and the costs and benefits of such legislation are widely shared throughout the area of service. For these reasons, the overwhelming majority of courts that have addressed the issue have found that mandatory connection to public water is a legitimate exercise of police power. See, e.g., Shrader v. Horton, 471 F.Supp. 1236 (W.D.Va.1979), aff'd, 626 F.2d 1163 (4th Cir.1980); Lepre v. D'Iberville Water & Sewer Dist., 376 So.2d 191 (Miss.1979); Town of Ennis, 807 P.2d at 184; New Jersey v. Kusznikow, No. A-971-94T3 (N.J.Super.Ct.App.Div. Jan. 8, 1996); Rupp v. Grantsville City, 610 P.2d 338 (Utah 1980); Tidewater Ass'n of Homebuilders, Inc. v. City of Virginia Beach, 241 Va. 114, 400 S.E.2d 523, 526 (Va.1991); Weber City Sanitation Comm'n v. Craft, 196 Va. 1140, 87 S.E.2d 153, 159 (Va.1955).

The only case supporting the plaintiffs' position is City of Midway v. Midway Nursing & Convalescent Center, Inc., 230 Ga. 77, 195 S.E.2d 452 (Ga.1973). ⁵ There, the Georgia Supreme Court found that mandating a connection to a public water supply was not a reasonable manner of protecting the health and welfare of citizens. City of Midway has been criticized by other courts for a crabbed understanding of the scope of a municipality's police power over health and safety issues. See, e.g., Town of Ennis, 807 P.2d at 182-83. Moreover, City of Midway was decided under state law that required grants of power to municipal corporations to be construed strictly, see City of Midway, 195 S.E.2d at 454, whereas we are evaluating only whether the ordinance meets the minimum standards of rationality required of social welfare regulation under the Due Process Clause.

We do not have the authority to second-guess rational legislative judgments of this sort. A legislature may be risk-averse even when there is no evidence of immediate hazard and some citizens are willing to run the risk of future harm. The Supreme Court of Virginia has upheld mandatory water connections even though ...