West v. Village of Morrisville

• Decision Date: 14 February 1984
• Docket Number: No. 538,D,538
• Citation: 728 F.2d 130
• Parties: Edith WEST, Appellant, v. VILLAGE OF MORRISVILLE and Robert Bourne, Richard Hill, Dayton Wakefield, Howard Morse, Bruno Laoti, individually and collectively as its Water and Light Commissioners, and Richard Sargent, Mary Kuntsman, Duane Sprague, Andrew Jensvold, Richard Shanley, individually and collectively as its Board of Trustees, and Robert Page, its Water and Light Superintendent, and William Pickens, its Water and Light Assistant Superintendent, and C.R. Whittier, its Agent and Tax Collector, Appellees. ocket 83-7617.
• Court: U.S. Court of Appeals — Second Circuit

Page 130

728 F.2d 130

Edith WEST, Appellant, v. VILLAGE OF MORRISVILLE and Robert Bourne, Richard Hill Dayton Wakefield, Howard Morse, Bruno Laoti, individually and collectively as its Water and Light Commissioners, and Richard Sargent, Mary Kuntsman, Duane Sprague, Andrew Jensvold, Richard Shanley, individually and collectively as its Board of Trustees, and Robert Page, its Water and Light Superintendent, and William Pickens, its Water and Light Assistant Superintendent, and C.R. Whittier, its Agent and Tax Collector, Appellees.

No. 538, Docket 83-7617.

United States Court of Appeals, Second Circuit.

Argued Dec. 14, 1983.

Decided Feb. 14, 1984.

Gary H. Barnes, South Burlington, Vt. (Downs, Rachlin & Martin, South Burlington, Vt., of counsel), for appellant.

Anthony B. Lamb, Burlington, Vt. (Paul, Frank & Collins, Inc., Burlington, Vt., of counsel), for appellees.

Before FEINBERG, Chief Judge, and OAKES and PIERCE, Circuit Judges.

OAKES, Circuit Judge:

This novel case involves a small amount of money but notable questions of constitutional principle, including questions of substantive and procedural due process, as well as the clash of the takings clause of the Fifth Amendment with the police power, an area at the cutting edge of constitutional analysis today. ¹ At the same time those constitutional issues may not be reached if certain questions of state law on which they turn are resolved in certain ways. The United States District Court for the District of Vermont, Albert W. Coffrin, Chief Judge, resolved the case on cross-motions for summary judgment. West v. Village of Morrisville, 563 F.Supp. 1101 (D.Vt.1983). Because there are readily available speedy and efficient ways of resolving those state law issues in the state courts or perhaps administrative agencies, prudential considerations, see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346-48, 56 S.Ct. 466, 480, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), dictate that the federal court abstain from decision in this case, Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), until these state questions are thus resolved. This is true even though abstention was not sought by either party or considered by the court below, and is opposed by both parties here. Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 480 n. 11, 97 S.Ct. 1898, 1904 n. 11, 52 L.Ed.2d 513 (1977).

Facts

The Village of Morrisville, Vermont, initially operated its own water and light department (the Department) by virtue of its municipal charter, a grant from the legislature. The Department is now subject to regulation as a public utility, like other privately owned utilities, by the Vermont Public Service Board (PSB), by virtue of a general statute, 30 Vt.Stat.Ann. Sec. 203 (Supp.1983). The municipal charter contains an unusual, if not unique, provision that purports to make landlords responsible for their tenants' electric bills. That provision says:

Said [Village] shall establish rates of rent to be charged and paid by the users of said water, lights and power at such times and in such manner as it may determine and may alter, modify, increase or diminish such rates and extend them to any description of property or use. Such rates or rents with the charges for wiring and piping shall be chargeable to and may be collected of, the owners of the property supplied with the same, unless otherwise agreed upon by the water and light commissioners and such owners and all such rents with charges for wiring and piping shall be a lien and charge upon the buildings, lots, and other property so supplied and may be collected in the same manner as any tax assessed by said [Village]. The said [Village] may order all rents for water and light to be paid in advance and may make all necessary provisions and orders, relating to the supply or stoppage of water and lights as it may deem expedient to insure the payment of such rents.

1910 Vermont Acts No. 313, Sec. 21.

Mrs. Edith West, owner of the "Kelly Block" in Morrisville, Vermont, has had several tenants to whom electric service was provided by the Morrisville Water & Light Department. In May, 1977, her attorney wrote the Department that she no longer wanted electrical service and would not be responsible for any service provided. The Department replied that it would honor tenants' requests for service and would bill them directly, but would also bill Mrs. West simultaneously and hold her and her property responsible for payment of any arrearages. Thereafter Mrs. West told her tenants to ask the Department directly for electrical service, gave them forms for this purpose, and advised the Department whenever a new tenant took over. About this time, the Department began sending monthly bills to the tenants only. No further bills were sent to the landlord until accounts became delinquent.

In May, 1980, the Department sent disconnect notices to Mrs. West advising her of arrearages and of the right to submit grievances to the Consumer Affairs Division of the Vermont Public Service Department (a right which Mrs. West has not exercised). On May 7, 1980, the Water & Light Department sent Mrs. West a letter listing six delinquent accounts totaling some $294 in arrearages ² and giving her until May 15 to pay up, in the absence of which the accounts would be turned over to the tax collector to collect under the above quoted section 21 of the charter. These amounts were eventually paid under protest.

Meanwhile the Water & Light Department filed a petition for a rate increase with the PSB, Docket No. 4255, on which hearings were held in January, 1978. The old tariff had stated that "[a]ll bills will be rendered in the name of the property Owner." This was objected to by a Consumer Affairs Representative at the State Department of Public Service, Thomas Whalen because, among other reasons, it did not encourage energy conservation. As the PSB order of July 3, 1979, noted:

It was Mr. Whalen's opinion that a tenant who was billed directly and is responsible for payment of bills will be more inclined to be energy-conscious than one not receiving a bill. Mr. Whalen also testified that billing directly to tenants will prevent the use of nonpayment as a tool by landlords to force a tenant to move out; would prevent a tenant from being denied electric service because a predecessor or a landlord failed to pay a previous bill; and would prevent the landlord from being penalized for failing to meet an obligation which is not properly his.

The PSB thus ordered the Department to file rate schedules consistent with its findings. The Department then filed a new rate schedule providing that "[a]ll bills will be rendered in the name of the property Owner, unless service is requested in the tenant's name."

It was after this proceeding in the PSB that the May 7, 1980, notice by the Department to Mrs. West was sent. When Mrs. West did not pay, the Village tax collector sent delinquent tax notices to her, eventually made a nonpossessory levy, and scheduled a tax sale. It was then that Mrs. West paid her taxes under protest, and thereafter commenced suit in federal court pursuant to 42 U.S.C. Sec. 1983 (1976).

Arguments of the Parties

The landlord argues that the "threshold question" is "whether the Village has the right under State law to levy upon and sell a landlord's property in satisfaction of an absconding tenant's unpaid electric bill." The argument is that the Village charter authorizes only liens for electric "rents," not "rates," terms which the district court found interchangeable. 563 F.Supp. at 1105. Mrs. West makes an elaborate argument relying on Vermont cases that charters are to be strictly construed, and that so construed the charter here permits only "rents with charges for wiring and piping" to constitute liens against the property owner, an argument which she says is bolstered by a long-term history of the Department's leasing appliances and providing wiring, installation, and repair services. The different language in the Village of Hardwick's charter ("rates of rents") (emphasis supplied) is also urged upon us. The Village, of course, takes an opposing view.

Mrs. West also argues that the PSB order in the rate case as a matter of state law prohibits the Village from holding landlords responsible for tenants' unpaid bills. The district court had construed the PSB order otherwise and also concluded that, even if the order did prohibit the Village, the PSB could not repeal provisions of the Village charter. 563 F.Supp. at 1105. Mrs. West argues that both determinations were incorrect and the Village argues contrariwise.

Mrs. West's federal claims are that the Village charter, insofar as it seeks to hold a landlord responsible for tenants' bills, violates the landlord's substantive due process rights and is bad "on public policy grounds," referring to the Public Utility Regulatory Policies Act of 1978, 16 U.S.C. Secs. 2601-2645 (Supp. V 1981). Finally Mrs. West argues that she is deprived of procedural due process under, e.g., Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and progeny, but see, e.g., Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), since she was not notified that a lien would be filed against her and since Vermont tax collection procedures do not facially provide an opportunity to be heard by an impartial judicial tribunal prior to levy or sale. Each constitutional argument is, of course, vigorously disputed by the Village, which also claims that its notice of disconnect gave the landlord ample opportunity to contest the disconnections in PSB proceedings.

Discussion

This case plainly involves three basic questions of state law, at least two of which must be decided before the constitutional questions are reached.

1. Does the Village Charter permit the landlord to be held responsible for...