PRELIMINARY STATEMENT
This is an appeal from a Memorandum and Order
entered on ___, 00_, by the Honorable ___, U.S.D.J., in the above-entitled
cause, which granted defendants’ Motion to dismiss plaintiffs’ Complaint.
This is an action against defendants for violating the due process rights of plaintiffs and causing them substantial monetary damages, which cannot be redressed by state law or process.
Plaintiff ___ (hereinafter “___”) owns a parcel of
property in the City of __. Plaintiffs
are officers of __. __ is also Vice
President of ___.
Defendant is employed by the Corporation of the City of
__ as Chairman of the City of ___ Zoning Board of Appeals, a municipal actor
sued in his individual capacity.
Defendant ___ is the President of the City of ___ Department of Housing
and Buildings, a municipal actor sued in his individual capacity. __ is the Deputy Commissioner of the City of
___ Department of Housing and Buildings, a municipal actor sued in his individual
capacity. ___ is the Mayor of the City
of ___, a municipal actor sued in his individual capacity. ___ is Corporation Counsel for the City of
___ and is sued in his individual capacity.
Plaintiffs own a certain parcel of property in the City of ___ .
On __, 200_, the City of __ issued plaintiffs a building permit to grade and fill at the property. Between ___ and ___, 200_, plaintiffs lawfully graded and filled in a manner which did not require any DEC approval, license, permit or notice and was consistent with the permit provided by the defendants. Unbeknownst at any time on or about ____, 200_, a representative of the Department of Environmental Conservation, ___, inspected the property located at ___.
On or about ___, 200_, the City of ___ issued a stop work order requiring plaintiffs to cease and desist from their grading and filling at the property.
On or about ___, 200_, ___, a Department of Environmental Conservation Engineering Geologist II, issued a notice of violation to plaintiff which, in essence, claimed that plaintiff was operating as a solid waste facility without a DEC permit, had impermissible equipment of the property and had failed and refused to allow DEC access to the property. A notice of violation is not an enforcement action and is merely an initial notice to a recipient indicating that its conduct may amount to a notable violation.
On or about ___, 200_, plaintiff with counsel, met with defendant and various officials from the City of __ Building Department. At this meeting, defendant admitted that building department inspectors had visited the property on a daily basis since ___, 200_, and some dates up to three times daily. Defendant also admitted that the stop work issued on ___, 200_, was based upon the oral assertions of __ on ___, 200_.
Defendant also conceded that the stop work order was issued because and only because of the oral assertions of ___ and that said stop work order would remain in effect because of the notice of violation issued by the DEC two days after defendants issued the stop work order. Defendant further conceded that he was not a DEC expert and informed plaintiff that the stop work order would not be vacated until plaintiffs proved to the DEC that plaintiffs were “not doing anything wrong.”
Plaintiffs and their agents protested that DEC claims were false and baseless, that the DEC had not issued a summary abatement order, that no environmental conservation tickets had been issued, that no notice of hearing and complaint had been served and as such, the DEC has not asserted jurisdiction over ___. Defendants persisted in their cease and desist order on the sole basis that DEC agents insisted plaintiffs were committing violations of state law and/or regulation.
Cognizant that they would have to convince defendants and those acting in concert with them that they were not engaged in violations suggested in defendant’s ___, 200_, letter, plaintiffs and/or their agents sought to schedule a hearing with defendants.
On or about __, 200_, plaintiff sought DEC “registration” for a construction and demolition debris processing facility on the property.
On ___, 200_, counsel for the City of ___, ___, Esq., explicitly informed the DEC, Region 3, that the “City of ___ does not intend to lift the stop work order (on ___’s property) until the DEC has informed us that there are no violations on said property.”
On ___, 200_, DEC denied the ___, 200_, application for registration by plaintiff noticing ___ with violations and delivering a copy of his denial letter to the defendants. Thereafter, the plaintiffs filed an appeal of the stop work order with the City of ___ Zoning Board of Appeals.
On ___, 200_, defendant after observing activity at ___, contacted the DEC, Region 3, attorney, ___, and “informed her of activity at the site in case she was interested.” Defendant also contacted ___ County Assistant District Attorney ___ and “informed him of the activity.”
On ___, 200_, defendant also contacted ___ of ___ Contracting and told him that “I was aware that material from ___ was being transported to their Cross County site…and the ___ County District Attorney’s Office had an ongoing investigation at the site and although the City is not a party to that investigation, a stop work order was issued as a result.”
On ___, 2001, at a meeting at the Zoning Board of Appeals, plaintiffs and their attorneys answered various questions posed by defendant and other members of the Board. ZBA did not call any witnesses. Plaintiffs did not have the opportunity to cross-examine any of the information before ZBA. The ZBA requested various documents and plaintiffs’ presence at the next hearing scheduled for February. On ___, 200_, seven months after issuance of the notice of violation, the DEC served upon ___, but not upon plaintiff ___, a notice of hearing and Complaint, which is factually frivolous and still fails to provide the target of the ___, 200_, notice of violation with a hearing on the claims advanced against it.
Plaintiffs and its attorneys duly appeared at the ___, 200_, meeting of the ZBA. No further testimony was given, however, there was a further request to answer questions raised by the ZBA. Plaintiff duly responded to the questions prior to the ___, 200_, meeting.
At the ___, 200_, meeting, the ZBA issued its decision denying the appeal of the SWO by the plaintiffs. In its decision, the ZBA stated that its decision was based upon “facts, findings and information presented to the Zoning Board of Appeals at the public hearing and otherwise obtained.”
The ZBA found that “___ also leases the property to ___.” This finding is factually and legally erroneous because there is not a lease between the two corporations, nor was there any testimony at the hearing and upon information and belief, the ZBA had no such lease in its records to support such a conclusion.
The ZBA also found that “based on the DEC’s subsequent (emphasis added) Notice of Violation, the ___ Department of Housing and Buildings issued a stop work order to ___.” The ZBA concluded, “…in the time since this application was filed, the DEC has filed a Notice of Hearing and Complaint, which is an administrative hearing pursuant to the allegations included in the Notice of Violation.” Upon information and belief, the Notice of hearing and Complaint was served upon a separate and distinct corporation. Thus, the decision of ZBA against the plaintiffs was based upon a Notice of Hearing and Complaint served upon a separate and distinct corporation.
By issuing a stop work order without an independent investigation and pre-termination hearing to resolve the stop work order or by demanding that the DEC clarify its position by testifying at the ZBA hearing and instead relying on a Notice of hearing and Complaint against ____, an unrelated, separate corporation, defendants knowingly violated plaintiffs’ property and liberty interests as provided by the due process clause of the Fourteenth Amendment and made actionable against them pursuant 42 U.S.C. § 1983.
STATEMENT OF SUBJECT MATTER AND APPELLATE
JURISDICTION
This court has jurisdiction with matter pursuant to 28 U.S.C. § § 1331, 1343 (3) and (4) and 42 U.S.C. §§ 1983 and 1988.
This court has appellate jurisdiction in that this is an appeal from a decision of the Honorable ___, U.S.D.J., of the Southern District of New York, dismissing plaintiffs’ Complaint pursuant to Federal Rules of Civil Procedure, 12 (b) (6).
STATEMENT OF ISSUES
POINT I
THE COURT BELOW IMPROPERLY
GRANTED DEFENDANT’S MOTION
PURSUANT TO RULE 12 (b) (6).
POINT II
THE DECISION OF THE COURT BELOW COMMITTED
OF PLAINTIFFS’ SUBSTANTIVE DUE PROCESS RIGHTS.
ANY QUALIFIED IMMUNITY AND FURTHER
DISCOVERY SHOULD HAVE BEEN PERMITTED.
UPON THE YOUNGER ABSTENTION.
SUMMARY OF ARGUMENT
Plaintiffs contend
that the court below improperly granted defendants’ Motion pursuant to Federal Rules of Civil Procedure, 12 (b)
(6), and in finding that there was an insufficient basis for plaintiffs’
Complaint and went beyond the four corners of the Complaint.
Plaintiffs further contend that the court below improperly found no violation of plaintiffs’ substantive due process rights and that the matter should be dismissed based upon the Younger Abstention Rule set forth in Younger v. Harris, 477 U.S. 619 (1971).
Plaintiffs contend that the defendants’ position as to qualified immunity is inappropriate and that further discovery should have been permitted.
POINT I
THE COURT BELOW IMPROPERLY
GRANTED DEFENDANT’S MOTION
PURSUANT TO RULE 12 (b) (6).
The 1946
amendments to the Federal Rules of Civil
Procedure added to Rule 12 (b) the proviso that if upon a motion to dismiss
asserting failure of a pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and disposed of
as provided in Rule 56, and all parties shall be given reasonable opportunity
to present material made pertinent to such motion by Rule 56, became effective
on March 19, 1948.
The 1946
amendment to Rule 12 (b) to some extent regularized and carefully defined an
existing practice, and in addition, applied the requirements of Rule 56
respecting summary judgments to the disposition of such motions. The criterion to be applied in the determination
of whether a particular material can qualify as a “matter present” is whether
such material is of the sort contemplated by Rule 56. That rule provides that summary judgment shall be granted if “the
pleadings, depositions, answers to interrogatories, and admissions of file,
together with the affidavits, if any,” show that there is no genuine issue as
to any material fact and the moving party is entitled to a judgment as a matter
of law.
The
provisions of Rule 12 (b) to the effect that if on a motion to dismiss, matters
outside the pleadings were presented to and not excluded by the court, such
motion shall be treated as one for summary judgment, made it discretionary with
a trial court to exclude matters outside the pleadings, and that it was only
when such court’s discretion was exercised in favor of the reception of the
tendered evidence that a motion for judgment was converted to one for summary
judgment. See Larsen v. American Airlines, Inc., (1963, CA2 NY) 313 F.2d 599.
The
court below considered documents extraneous and outside the scope of
defendant’s motion and therefore, inappropriately dismissed plaintiff’s
Complaints based upon Rule 12 (b) (6).
In Chambers v. Time Warner, Inc.,
(2nd Cir. 2002), docket number 01-7010, the court stated:
We reviewed de novo a
district courts dismissal of a Complaint pursuant to Rule 12 (b) (6) construing
the Complaint liberally, accepting all factual allegations and the Complaint is
true and drawing all reasonable inferences in the plaintiff’s favor. Gregory
v. Daly, 243 F.3rd 687, 691 (2nd Cir. 2001)
‘dismissal is inappropriate unless it appears beyond a doubt that the plaintiff
can prove no set of facts which would entitle him or her to release.’ Sweet
v. Sheahan, 235 F.3d 80, 83 (2nd Cir. 2000).
The
court went on to find that when the court below is presented with material
outside of the pleadings, which it has before it, that Rule 12 (b) allows for
two possible avenues of proceeding. The
court below could have excluded the documents or if it did not, then it would
convert the motion to one for summary judgment and to the parties should be
afforded an opportunity for appropriate discovery and to submit additional
supporting material contemplated by Rule 56.
The court cited to Carter v.
Stanton, 405 U.S. 669, 671 (1972); Friedl
v. City of New York, 210 F.3d 79, 83-84 (2nd Cir. 2000); Morelli v. Cedel, 141 F.3d, 39, 45-46 (2nd
Cir. 1988). The court indicated “this
conversion requirement is ‘strictly enforced’ whenever a district court
considers extra pleading material in ruling on a motion to dismiss. Friedl,
210 F.3d at 83 (quoting Amarker v.
Weiner, 1979 F.3d 48, 50 (2nd Cir. 1999).” See also Thompson
v. Carter, (2nd Cir. 2002), docket number 00-0253.
As set
forth in Chambers, supra,
Once the District Court
was presented with matters outside the pleadings, Rule 12 (b) afforded two
options. The court could have excluded
the extrinsic documents. Because it
elected not to do so, however, the court was obligated to convert the motion to
one for summary judgment and give the parties an opportunity to conduct
appropriate discovery and submit the additional supporting material
contemplated by Rule 56. See Carter v. Stanton, 405 U.S. 669, 671
(1972) (per curiam); Friedl v. City of
New York, 210 F.3d 79, 83-84 (2nd Cir. 2000); Morelli v. Cedel, 141 F.3d 39, 45-46 (2nd
Cir. 1998).
In Gurary v. Winehouse, 190 F.3d 37 (2nd
Cir. 1999), the court stated:
We frequently have held
that a district court ordinarily must give notice to the parties before
converting a motion to dismiss pursuant to Rule 12 (b) (6) into one for summary
judgment and considering matters outside the pleading. E.g., Kopec
v. Coghlin, 922 F.2d 152, 154-55 (2nd Cir. 1991). This is simply an application, however, of
the principle that parties are entitled to a reasonable opportunity to present
material pertinent to a summary judgment motion.
Again,
in Newman & Schwartz v. Asplundh Tree
Expert Co., 102 F.3d 660 (2nd Cir. 1996), the court held:
Appellant asserts that
the district court committed error in explicitly considering and relying upon
affirmations and other evidentiary materials outside of the complaint when
granting defendant’s motion to dismiss. (fn2)
‘In considering a motion to dismiss for failure to state a claim under Federal Rules of Civil Procedure 12 (b)
(6), a district court must limit itself to facts stated in the complaint or in
documents attached to the complaint as exhibits or incorporated in the
complaint by reference.’ Kramer v. Time Warner, Inc., 937 F.2d
767, 773 (2nd Cir. 1991).
The court is further required to view all allegations raised in the
complaint in the light most favorable to the non-moving party, here N & S, Scheuer v. Rhodes, 416 U.S.
232, 236, 94 S.Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2nd Cir. 1989), and
‘must accept as true all the factual allegations in the complaint.’ Leatherman v. Tarrant County Narcotics Unit,
507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993).
See also Northrop v. Hoffman of Simsbury, Inc.,
134 F.3d 41 (2nd Cir. 1997).
It is true that
[i]n considering a motion
to dismiss for failure to state a claim under Federal Rules of Civil Procedure 12 (b) (6), a district court must
limit itself of facts slated in the complaint or in documents attached to the
complaint as exhibits or incorporated in the complaint by reference, and that
[i]f a district court wishes to consider additional material, Rule 12 (b)
requires it to treat the motion as one for summary judgment under rule 56. Kramer
v. Time Warner, Inc., 937 F.2d 767, 773 (2nd Cir. 1991)
The
court in Gagliardi v. Village of Pawling,
18 F.3d 188 (2nd Cir. 1994), stated:
While the motion was made
pursuant to Rule 12 (b) (6) of the Federal
Rules of Civil Procedure for failure to state a claim upon which relief can
be granted, the district court sua sponte
converted the motion to one for summary judgment. Although Rule 12 (c) provides for conversion where material
outside the pleadings has been considered by the court, the parties must be
given an opportunity to submit any material pertinent to a Rule 56 motion for
summary judgment. Fed.R.Civ.P. 12 (c); Kramer
v. Time Warner, Inc., 937 F.2d 767, 773 (2nd Cir. 1991). The parties here were not given an
opportunity to submit any pertinent material; moreover, there had been no
discovery by the time the motion was made.
So too
in the case at bar. No discovery was
allowed or any time to present opposition material.
In the
case at bar, the lower court considered matters outside of the pleadings and
should have, at least, permitted the plaintiff time for discovery. The court’s failure to do so was reversible
error.
POINT II
THE DECISION OF THE COURT BELOW COMMITTED
OF PLAINTIFFS’ SUBSTANTIVE DUE PROCESS RIGHTS.
“To state a
substantive due process claim, a party must first establish that he had a valid
‘property interest’ in a benefit that was entitled to constitutional protection
at the time he was deprived of that benefit.”
Zahra v. Town of Southold, 48
F.3d 674, 680 (2nd Cir. 1995).
Plaintiff argues that it “acquired” a legitimate claim of entitlement to
the completion of the project as set forth in its complaint.
“This Circuit
uses a strict ‘entitlement’ test to determine whether a party’s interest in
land-use regulation is protectible under the Fourteenth Amendment. … The
analysis focuses on the extent to which the deciding authority may exercise
direction in arriving at a decision, rather than on an estimate of the
probability that the authority will make a specific decision.” Id. (citations omitted). The question is, therefore, whether
cessation of the project and the permit was a decision left to the discretion
of the defendants or whether instead a predetermination hearing was an actual
legal duty that left no room for such discretion.
Under the strict
“entitlement” analysis favored in this Circuit, such a discretional obligation
should create the property interest required to sustain plaintiff’s due process
claim. See Zahra, 48 F.3d at 680. The
district court was, therefore, incorrect in its rejection of that claim.
Equal protection claims generally allege that a class to which a party belongs is being treated unequally under the law. Occasionally, however, an equal protection claim asserts that a party who belongs to a particular class is not being treated in the manner that the law requires such class members to be treated. Plaintiff’s claim takes the latter form. That is, plaintiff argues that as a property owner, the law entitles it to certain vested rights and that the revocation of the permit without due process violates those rights. Other property owners have been given the required permits. Plaintiff, therefore, has not received the same legally mandated benefits.
In Natale v. Town of Ridgefield, 170 F.3d
258 (2nd Cir. 1999), the court stated:
For state action to be taken
in violation of the requirements of substantive due process, the denial must
have occurred under circumstances warranting the labels ‘arbitrary’ and
‘outrageous.’ See e.g., County of Sacramento v. Lewis, 118 S.Ct.
1708, 1716 (1998) (‘[T]he touchstone of due process is protection of the
individual against arbitrary action of government.”) (citation and internal
quotation marks omitted); Rochin v.
California, 342 U.S. 165, 172 (1952) (conduct that ‘shocks the conscience’
violates substantive due process), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961); cf. Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 263 (1977) (observing that persons
have the ‘right to be free of arbitrary or irrational zoning actions’); Pearson v. City of Grand Blanc, 961 F.2d
1211, 1221-22 (6th Cir. 1992) (‘To prevail, a plaintiff must show
that the state administrative agency has been guilty of arbitrary and
capricious action in the strict sense, meaning that there is no rational basis
for the … decision.’).
In Brady v. Town of
Colchester, 863 F.2d 205 (2nd Cir. 1988), the court in
discussing a zoning variance matter stated the following:
Because there is sufficient evidence to permit a finding that the property was zoned and used commercially at the time this dispute arose, rather than residentially, we concluded that appellants may have had protectible Fourteenth Amendment property rights in the commercial use and renovation of their property and that a jury also could reasonable find that appellants had been deprived of those rights in violation of the Fourteenth Amendment.
The court went
on to state:
See Sullivan v. Town of Salem, 805 F.2d 81, 85 (2nd Cir.
1986) (if property complied with applicable state and municipal requirements,
then ‘it was no element of discretion or judgment remanding for the building
official to exercise in determining whether to grant benefit requested); see
also Bello v. Walker, 840 F.2d 1124,
1129-30 (3rd Cir.) (court reversed a grant of summary judgment
rendered in favor of a municipal zoning board, where the plaintiff presented
sufficient evidence to demonstrate that the municipal council’s denial of a
building permit was motivated by purely personal and political reasons), certs. denied, U.S. 109 S.Ct. 134, 102
L.Ed. 2nd 107 (1988).
Plaintiff established preliminarily in its pleadings a constitutionally protected right of which it was being deprived by state action. A plaintiff now sues to engage in discovery, which would allow the plaintiff to present sufficient evidence demonstrating the presence of ill will and animus demonstrated by the defendants.
ANY QUALIFIED IMMUNITY AND FURTHER
DISCOVERY SHOULD HAVE BEEN PERMITTED.
In County of
Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708 (1998), the United State
Supreme Court, on a motion for summary judgment set forth standard upon which a
1983 action, confronted by a defense of qualified immunity must be dissected
and reviewed. The court reasoned that
the first issue is whether the right implicated was clearly established at the
time of the events in question.
The defendants argue that the plaintiffs have not
established a constitutional right.
This simply is not so.
Defendants argument is in error, and its citations are similarly unavailing. The Court noted that its prior cases have
held that the provision of the Fourteenth Amendment “No state shall deprive any
person of life, liberty or property without due process of law,” guarantees
more than fair process, it includes a substantive sphere as well. The substantive sphere serves to bar certain
governmental actions regardless of the fairness of the procedures used to
implement them. Substantive due process
violations are indeed actionable under § 1983.
The allegations here, that the plaintiffs have been and
continue to be deprived of their vested property right, that was obtained
through a legally issued building permit in violation of substantive due
process amounts to such a claim. As in
any action under
§ 1983, the first step is to
identify the exact contours of the underlying right said to have been violated. Thus the first question is whether the
plaintiffs had a clearly established
constitutional right at the
time of the events in question.
A property owner with a legally issued permit
demonstrates a vested right by inter alia,
making substantial changes, incurring substantial expenses to further the
development of the property, and relying on the permit such that the
defendants’ action results in serious loss and destruction of value of the
property. It is asserted and admitted
by the defendants, that the plaintiffs received a legal and valid building
permit. Plaintiffs factual allegations
are easily distinguished from those cases offered by defendants. The subject permit was not issued by
mistake, it was no denied, and discretionary renewal was not being sought. As defendants are aware, plaintiffs, after
receiving its permit, and in reliance upon the permit, embarked on a land
reclamation project, removing 40 years of debris from he property, filling and
grading the property, and retaining engineers to submit plans for further
development.
When the defendants halted action, plaintiffs were left
without redress, and its property is now valueless. The plaintiffs have no conceivable manner of mitigating the
damage that continues to be caused by the defendants, because defendants have
asserted through the issuance of continuing violations, that the plaintiffs
cannot pursue a single activity until the earlier order is lifted.
Under the circumstances alleged in the complaint, admitted to by the defendants in their motion and supporting documents, this court should find that the defendants’ actions were and continue to be an abuse of power so clearly unjustified by any legitimate objective of law enforcement as to be barred by the Fourteenth Amendment. The Due Process Clause is intended to prevent government officials from abusing their power or employing it as an instrument of oppression. The assertion that the defendants’ behavior is motivated by its responsibility to protect and assure compliance with DEC rules and regulations is disingenuous. It is arbitrary, capricious and malicious that a single assertion by a DEC employee merits a stop work order and several DEC notices of violation served upon the City of ___ for its failure to maintain its wastewater discharge system and for exceeding the effluent limitation for oil and grease permitted does not.
Protection against governmental arbitrariness is the core
of due process and conduct deliberately intended to injure in some way
unjustifiable by any government interest is the sort of official action most
likely to rise to the level of conscience-shocking. Contrary to the citations in defendants’ reply, defendants
shockingly chose to ignore its ability to issue subpoenas to DEC officials
during the Zoning Board Hearings. There
are no facts upon which defendants can assert sufficient indicia of
reliability.
It must be noted that the arguments offered by
defendants’ reply are actually self-defeating.
It is not the denials of the plaintiffs that required an independent
investigation. Rather, it is the
admission of building department inspectors in not finding any violations
despite daily inspections and the admission by defendant that there had been no
activity or work on the property since the middle of ___ 200_, which flies in
the face of the single assertion of an engineer whose attempt to search the
property was aborted, that commanded an independent investigation before the
issuance of the stop work order.
Defendants’ argument of qualified immunity is premature
and fails. Defendants aver that they
are not responsible for conducting an exhaustive investigation. Certainly, due process mandates a minimal
investigation. Defendants failed to
meet this standard. Surely, issuing a
subpoena to the party upon whose notice of violation defendants relies is not
exhausting. It could have been attached
to its letter asking that the DEC charge the plaintiffs before the ___ 200_
Zoning Board meeting. Nor is the
acquisition of a deed exhausting. The
tenets of due process and the responsibility of the defendants as municipal
actors required due diligence. In any
event, it is not until the court reviews the discovery record that the defense
of qualified immunity can be examined.
In Kalina v.
Fletcher, 522 U.S. 118 (1997), the Supreme Court stated “Thus in
determining immunity, we examine ‘the nature of the function performed, not the
identity of the actor who performed it.’”
Forester v. White, 484 U.S.
219, 229 (1988), the court, in a footnote, stated further “examining the nature
of the function performed is not a recent innovation. In Ex Parte Virginia, 100 U.S. 339, 348 (1880), we stated
‘whether the act was done by a judge was judicial or not is to be determined by
its character and not by the character of the agent’” See also Bradley v. Fisher
13 Wall., at 347 (examining ‘the character of the act’ performed by a
judge).
Younger v. Harris, 477 U.S. 619, decided in 1971 by a new
Supreme Court majority, signaled a change of direction for Federal Courts
law. See Louise Weinberg, The New Judicial Federalism, 29 STAN.
L. REV. 1191 (1977). Broadly stated,
the Younger abstention doctrine
requires that federal courts dismiss cases otherwise properly before them in
favor of pending state proceedings.
Over the past twenty-five years, one important theme of the Supreme
Court’s work in Federal Courts has been to expand the scope of Younger abstention. Using Younger,
the court has steadily cut back on access to federal courts (see Fallon, et al., v. Hart & Wechsler’s
Fourth, supra, note 25, at 1291-1308), ostensibly in order to avoid
duplication of effort and friction between the federal and state judiciaries. But the doctrine has gone far beyond the
logic of the jurisdictional policy on which it was built.
There are sound
reasons of jurisdictional policy why a federal court generally ought to abstain
if the state suit is filed first. In Steffel v. Thompson, 415 U.S. 452, 462
(1974), the court explained that federal intervention disrupts an ongoing case,
duplicates the efforts of the state court, and may indicate unwarranted
distrust of the abilities of state judges.
Consider, however, the court’s application of Younger to cases in which the federal litigation precedes the state
suit. In Hicks v. Miranda, 422 U.S. 332 (1975), the federal proceeding began
before the state case, so that none of the Steffel
reasons supported federal deference.
The Supreme Court, nonetheless, required abstention as long as the state
case was instituted before “proceedings of substance on the merits” had taken
place in federal court. Hicks explained that allowing the
federal case to continue would “trivialize” Younger,
but the court did not explain why. The
most plausible explanation is that the court thought Younger stood, not for the jurisdictional policies identified in Steffel, but rather, for giving the
state a litigating edge of channeling constitutional cases to a forum sympathetic
to state substantive interests. See
Michael Wells, Is Disparity a Problem?, 22
GA. L. Rev. 283, 315-16 (1988) (“Disparity”).
Other aspects of
the Younger doctrine also extend
abstention to areas where “avoiding friction” is a comparatively weak
goal. Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), applied the doctrine
to foreclose federal adjudication of a request for interim relief during the
pendency of the litigation, even though interim relief could not be sought in
the state proceeding at all. This
result flies in the face of the Younger doctrine’s
premise that the state court litigant is not deprived of a forum by federal
abstention. Not only does it ignore the
policy of sensitivity to institutional competence; it also misapplies the policy
of avoiding friction. There is not
immediate need to avoid friction in a case like Doran, where the relevant issue is not before the state court at
all. See Douglas Laycock, Federal Interference with State
Prosecutions: The Need for Prospective Relief, 1977 SUP. CT. REV. 193,
238. One may argue that the mere
availability or a state remedy is sufficient friction to justify abstention,
but that reasoning is at odds with Monroe
v. Pape. See supra text accompanying notes 125-32.
Within the realm
of civil cases, it seems especially inappropriate to apply Younger to a case like Moore
v. Sims, 442 U.S. 415 (1979), where the federal issue was not a defense but
a permissive counterclaim. Avoiding
friction with state courts should not require federal courts to turn away
claims, which are only tangentially connected to the state litigation. There must be some other factor at work in
the modern Younger cases. That factor is that an increasingly
conservation Supreme Court sought to channel claims to state tribunals more
likely to arrive at comparatively narrow interpretations and applications of
federal constitutional rights.
Plaintiff sought
to show the City acted with impermissible intent. Such evidence would allow the fact finder to conclude the City
violated plaintiff’s rights.
Younger generally requires federal courts to abstain from
taking jurisdiction over federal constitutional claims that involve or call
into question ongoing state proceedings.
Younger, 401 U.S. 37, 43-44
(1971). Although the Younger abstention doctrine was born in
the context of state criminal proceedings, it now applies with equal force to
state administrative proceedings. Ohio Civil Rights Comm’n v. Dayton Christian
Schools, Inc., 477 U.S. 619, 627 (1986).
This doctrine of federal abstention rests foursquare on the notion that,
in the ordinary course, “a state proceeding provides an adequate forum for the
vindication of federal constitutional rights.”
Cullen, 18 F.3d at 103 (citing
Kugler v. Helfant, 421 U.S. 117, 124
[1975]). Therefore, giving the respect
to our co-equal sovereigns that principles of “Our Federalism” demand, we
generally prohibit federal courts from intervening in such matters. Younger,
401 U.S. at 44; see also Cullen, 18
F.3d at 103.
Younger abstention is required when three conditions are
met: (1) there is an ongoing state proceeding; (2) an important state interest
is implicated in that proceeding; and (3) the state proceeding affords the
federal plaintiff an adequate opportunity for judicial review of the federal
constitutional claims. Grieve v. Tamerin, 269 F.3d 149, 152 (2d
Cir. 2001).
Despite the
strong policy in favor of abstention, a federal court may nevertheless
intervene in a state proceeding upon a showing of “bad faith, harassment or any
other unusual circumstance that would call for equitable relief.” Younger,
401 U.S. at 54. However, a plaintiff
who seeks to head off Younger abstention
bears the burden of establishing that one of the exceptions applies. See Kirschner
v. Klemons, 225 F.3d 227, 235-36 (2nd Cir. 2000). Plaintiff contends that this case falls
within both the “bad faith” and the “extraordinary circumstances”
exceptions. For a federal plaintiff to
invoke the bad faith exception, “the party bringing the state action must have
no reasonable expectation of obtaining a favorable outcome.” Cullen,
18 F.3d at 103.
The question of
whether prior litigation results in claim preclusion in a later suit is a
question of law, reviewed without deference.
Miller v. County of Santa Cruz,
39 F.3d 1030, 1032 (9th Cir. 1994); Young Eng’rs., Inc. v. United States Int’l Trade Commission, 721
F.2d 1305, 219 USPQ 1142 (Fed. Cir. 1980).
It is now widely recognized that the judicially enforced notion of
litigation repose, called broadly res
judicata, has two distinct branches, one referred to as issue preclusion
(once known as collateral estoppel), and the other as claim preclusion. It is the latter branch with which we are
here concerned.
The general
concept of claim preclusion is that when a final judgment is rendered on the
merits, another action may not be maintained between the parties on the same
“claim,” and defenses that were raised or could have been raised in that action
are extinguished. Restatement (Second)
of Judgments, §§ 18-19. For claim preclusion
purposes, consent judgments are considered to have the same force and effect as
judgments entered after a trial on the merits.
Because this issue has not already been fully decided in a prior state
court proceeding involving these same parties, plaintiff believes that the
court is not barred by collateral estoppel from considering it.
“We give a prior
state court decision the same preclusive effect” it would have in the courts of
that state. Colon v. Coughlin, 58 F.3d 865, 869 n.2 (2d Cir. 1995) (citing Kremer v. Chemical Constr. Corp., 456
U.S. 461, 466 [1982]). Under New York
law, collateral estoppel or issue preclusion, will only apply if “(1) the issue
in question was actually and necessarily decided in a prior proceeding, and (2)
the party against whom the doctrine is asserted had a full and fair opportunity
to litigate the issue in the first proceeding.” Id. at 869. And the party
asserting issue preclusion has the burden of showing that the identical issue
was decided, while the party opposing preclusion has the burden of showing the
absence of a full and fair opportunity to litigate. See id.
In the case
before us, the question is the nature of the City of ___’s obligation under the
law with respect to the permits issued and their revocation without due
process. This issue is not the precise
one decided by the state court in the Article 78 proceeding. In that proceeding, the state court held
that the City had discretion rather than any due process argument.
Based upon the foregoing law and argument plaintiff
respectfully requests that the court reverse the decision of the court below
and permit the matter to move forward through the discovery phase.
Respectfully
submitted,
Dated: ___, Esq.