Opinion
Civil Action No: SA-03-CA-1312-XR
March 15, 2004
ORDER
On this date, the Court considered its jurisdiction over Plaintiffs' claims in this case. The Court previously ordered the parties to submit further briefing on the ripeness of Plaintiffs' federal takings and due process claims and the status of Plaintiffs' claim under the Fourth Amendment. That briefing is complete and Plaintiffs have submitted their First Amended Complaint.
Facts and Procedural Background
This action was originally filed by Plaintiffs in State court in December 2003 and was removed by Defendants to this Court in January 2004 pursuant to 28 U.S.C. § 1441. Plaintiffs bring claims related to two ordinances passed by the Town of Hollywood Park. The first ordinance was passed in April 2002 (Ordinance 728) and amended in December 2002 (Ordinance 754). It provides that, "No person shall purposely feed or provide food (as herein described) through a ground-feeding station, salt lick, or by other means to the wild deer on (a) public property, (b) privately owned property, (c) public or private easements, such as drainage androadway easements, or (d) any other privately owned land of any description within the Town of Hollywood Park, Texas." It further provides that, "a person shall be deemed to have purposefully fed or caused deer to be fed if the person places wheat, pelleted livestock food, corn in any form, fruit, vegetables, hay or alfalfa, human food scraps, any form of commercially sold wildlife feed, birdseed, or livestock feed or any other edible matter that deer will consume (not including live vegetation such as ornamental landscaping, ornamental bushes, or flowers) on the ground, or within reach of deer or by any other means." Violation of the ordinance is punishable by a fine.
The second ordinance, Ordinance no. 769, was passed on December 16, 2003. It provides that "The Mayor and/or the Project Manager is authorized to implement and execute the deer management program through trapping and transporting, or trapping, transporting and processing (hereinafter: TTP), or through a depredation program approved by the Parks and Wildlife Division of the State of Texas, all of said programs to adhere to the currently prescribed programs, policies and procedures for the management of deer that are promulgated by the State of Texas Parks and Wildlife Division." On December 22, 2003, the Hollywood Park City Council voted to contract to trap deer in Hollywood Park for transplantation or processing. The Texas Department of Parks and Wildlife issued a "TTP" permit to the Town on January 9, 2004, and the Town has begun removing deer pursuant to the permit. This Court denied Plaintiffs' application for a temporary injunction to prevent the Town from proceeding pursuant to the permit. See docket no. 27.
At the time of removal, Plaintiffs state-court petition alleged state and federal takings and due process claims under the state and federal constitutions, a section 1983 claim premised on a Fourth Amendment violation, and several state-law claims. On January 23, 2004, this Court issued an order regarding its jurisdiction over Plaintiffs' claims. The Court requested further briefing on the ripeness of Plaintiffs' federal takings and due process claims because Plaintiffs have not exhausted state remedies prior to bringing their federal takings claims, and their due process claims appearedto be framed as taking claims. See Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985) ("[I]f a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation."). The Court further noted that, based on the evidence presented at the hearing on the preliminary injunction, it appeared that the Town and its agents had not and did not intend to enter upon the Plaintiffs' property. The Court therefore requested Plaintiffs to inform the Court whether they intended to continue to pursue the claim. The Court further invited the parties to submit additional briefing regarding whether the Court should exercise supplemental jurisdiction over the Plaintiffs' state-law claims.
Plaintiffs filed their First Amended Complaint on February 2, 2004. Plaintiffs nonsuited their Fourth Amendment claim. Plaintiffs' current federal claims involve various allegations that the Town violated the takings and due process clauses of the United States Constitution. The remaining claims asserted in Plaintiffs' complaint are state-law claims over which this Court has supplemental jurisdiction. Defendant has filed a motion to dismiss and Plaintiffs have filed a motion to remand. Plaintiffs contend that their federal claims are not ripe and urge the Court to remand the state-law claims. Defendant contends that the federal claims are ripe, and urge the Court to retain jurisdiction over the case. To determine what federal claims are presented and whether they are ripe, the first step is to identify the specific constitutional rights allegedly infringed. John Corp. v. City of Houston, 214 F.3d 573, 576 (5th Cir. 2000).
With regard to Ordinance 769 (the deer removal ordinance), Plaintiffs allege that "the individual Plaintiffs own property rights in and to such deer, which property rights are protected by the federal and state constitutions. Stated another way, plaintiffs have property rights in and to the deer and such property rights cannot be taken by the state without fair compensation and the due process of law." See First Amended Complaint ¶ 4. They contend that the decision to remove the deer "was a clear abuse of municipal discretion and constituted an unreasonable, unnecessary, excessive, and oppressive abuse of the Township's police power which infringed on the individual property rights of the Plaintiffs." These allegations invoke the protections of both the takings clause of the Fifth Amendment and the Due Process Clause.
With regard to the feeding ban ordinance, Plaintiffs allege that "[t]he ordinance in question has placed burdensome restrictions that limit the individual plaintiffs' right to use and enjoy their property. Said ordinance unreasonably interferes with the individual plaintiffs' right to make full use of their land. The . . . ordinance has affected the market value of the plaintiffs' land by decreasing the suitability and feasibility of the land for its intended use and enjoyment." They also allege that the ordinance is "governmental regulation that has gone `too far'" and that "[t]he ordinance has effected a regulatory taking of plaintiffs' property" and that they are suing the Town "for damages under inverse condemnation for a regulatory taking." Further, they allege that "there is no rational basis to justify the enactment of the ordinance" and "[t]he ordinance constitutes a clear abuse of municipal discretion and constitutes an unreasonable, unnecessary, excessive, and oppressive abuse of the Township's police power which infringes on the individual property rights of the Plaintiffs." These allegations invoke the protections of both the takings clause of the Fifth Amendment and the substantive due process component of the Fourteenth Amendment Plaintiffs further allege that "[t]he ordinance is overly broad and vague" and that it is "penal in nature and purports to impose fines for its violations." These allegations also invoke the protections of substantive due process. John Corp. v. City of Houston, 214 F.3d 573, 585 (5th Cir. 2000). The Court now turns to whether these claims are ripe and whether it has jurisdiction over these claims.
For a federal takings claim to become ripe, the plaintiff is required to seek compensation through the procedures the state has provided unless those procedures are unavailable or inadequate. Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 385 (5th Cir. 2001). Thus, because Plaintiffs have not sought compensation through state inverse condemnation procedures, their federal takings claims are not ripe unless they can demonstrate that it would be almost certain that the state would deny the Plaintiffs compensation were they to undertake the obviously fufile act of seeking it. Samaad v. City of Dallas, 940 F.2d 925, 935 (5th Cir. 1991). A state procedure is inadequate only if it "almost certainly will not justly compensate the claimant." Id.
Claims related to Ordinance 769 (deer removal)
Article I, Section 17 of the Texas Constitution requires compensation if property is "taken, damaged or destroyed for or applied to public use." TEX. CONST. art. I, § 17. Plaintiffs assert that they have a property right in the deer and allege that Ordinance 769 authorizes the Town to physically appropriate the deer. Texas courts appear to recognize takings claims for personal property in addition to real property. See Renault, Inc. v. City of Houston, 415 S.W.2d 948, 952 (Tex.Civ.App.-Waco. 1967) ("property" as used in Texas and federal constitutions "relates to every species of property, including personalty"), rev`d on other grounds, 431 S.W.2d 322 (Tex. 1968); Knowles v. City of Granbury, 953 S.W.2d 19 (Tex.App.-Fort Worth 1997, writ denied) (remanding for trial plaintiffs claim that airplane was taken in violation of article I, Section 17). But see Bates v. Tex. State Tech. College, 983 S.W.2d 821, 826 n. 8 (Tex.App.-Waco. 1998, pet. denied) ("[O]ur search indicated that `property' as stated in the Texas constitution refers to real property."). And Texas courts unquestionably recognize a cause of action for inverse condemnation when property has been physically appropriated. Thus, Texas provides an adequate procedure for compensation in these circumstances. Accordingly, Plaintiffs' claim that Ordinance 769 effects a taking under the Fifth Amendment of the United States Constitution is not ripe.Defendant argues that the Plaintiffs' allegations indicate that the deer are being taken for both private and public purposes because they may be relocated to private ranches or processed and given to charities. Relying on the Fifth Circuit's decision in Samaad v. City of Dallas, Defendant argues that because the Fifth Amendment prohibits a taking for a private purpose, even if compensation is paid, Plaintiffs' claim for the alleged taking of property for private purposes is ripe even if Plaintiffs have not sought relief under State procedures. See Samaad, 940 F.2d at 936. The Court disagrees. Plaintiffs do not allege that their property has been taken for a private use — rather, they expressly contend only that the removal of the deer "constitutes the taking, damaging, and destruction of private property for public use." Regardless of the pleadings, the Court concludes that the taking is for a public, not a private purpose. The Town is removing the deer as part of its police power to protect the health and safety of its residents. Undoubtedly, this is a public purpose. Where the deer end up — either in private hands or feeding inmates — does not change the public purpose of the taking. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014 (1984) ("This Court . . . has rejected the notion that a use is a public use only if the property is put to use for the general public."). Moreover, the Court concludes that placing the deer with a charitable food bank that feeds the needy is also a public purpose.
Even if the taking were for a private purpose, the Fifth Circuit has concluded that, based on a review of cases under Article I, section 17, it is not "almost certain" that a claim that one's property was taken for a private use would not be compensated under Texas law. John Corp., 214 F.3d at 581.
As noted, Texas provides an adequate procedure in the form of a cause of action for inverse condemnation when the government physically appropriates one's property. Thus, the Court concludes that Plaintiffs' federal constitutional takings claims are not ripe. Plaintiffs' claims that Ordinance 769 authorizes the taking of deer in violation of the Fifth Amendment to the United States Constitution is DISMISSED WITHOUT PREJUDICE.
Plaintiffs also bring claims related to Ordinance 769 under the due process component of the Fourteenth Amendment. As noted in this Court's prior order, the Fifth Circuit has recognized that "[i]ndividuals may look to several constitutional provisions for protection against state action that results in a deprivation of their property," including the due process component of the Fourteenth Amendment. John Corp., 214 F.3d at 577. Plaintiffs contend that Ordinance 769 was a clear abuse of municipal discretion and "constituted an unreasonable, unnecessary, excessive, and oppressive abuse of the Township's police power which infringed on the individual property rights of the Plaintiffs." As noted previously, these allegations invoke the substantive due process component of the Fourteenth Amendment. However, Plaintiffs state that these claims are primarily tied to a Fifth Amendment taking theory of recovery. See Memorandum of Law on Issue of Ripeness ¶ 5. They further state that "Plaintiffs' due process claims under the Fourteenth (14th) Amendment are framed only as takings claims." Id. ¶ 4. Thus, although "substantive due process claims alleging deprivations of property are not necessarily subsumed under the Takings Clause," Plaintiffs admit that their substantive due process claims are framed only as takings claims. See Sandy Creek Investors v. City of Jonestown, 325 F.3d 623, 626 (5th Cir. 2003); Simi Investment Co. v. Harris County, 236 F.3d 240, 248 (5th Cir. 2000). Defendants also "agree with the Court that the Plaintiffs' due process claims are plead as if they were takings claims." See Defendant Town of Hollywood Park's Brief on Jurisdiction ¶ 13 n. 2. Thus, like the taking claim under the Fifth Amendment related to Ordinance 769, these substantive due process claims are not ripe. See Sandy Creek, 325 F.3d at 626. Accordingly, Plaintiffs' claims that Ordinance 769 authorizes the taking of deer in violation of the substantive due process component of the Fourteenth Amendment are DISMISSED WITHOUT PREJUDICE.
This Court does not construe Plaintiffs' First Amended Complaint as asserting a claim that they were denied the procedural due process required by the Constitution. However, to the extent that the phrase "The Defendant Township has failed to keep its citizens and residents informed and advised of the manner and methods it intends to utilize in order `to control' the deer population in Hollywood Park" could be construed to allege a federal procedural due process claim with regard to Ordinance 769, the Court concludes that such a claim would not be ripe. Although such claims are not necessarily rendered unripe by Williamson County, the Fifth Circuit has concluded that similar claims in John Corp. v. City of Houston were rendered unripe by "the general rule that a claim is not ripe if additional factual development is necessary." John Corp., 214 F.3d at 586. In addition, Plaintiffs and Defendants agree that the due process claims are framed as takings claims. Accordingly, Plaintiffs' claims that Ordinance 769 authorizes the taking of deer in violation of the procedural due process component of the Fourteenth Amendment, if any, are DISMISSED WITHOUT PREJUDICE.
Claims Related to Deer Feeding Ban
Plaintiffs assert that the feeding ban ordinance "unreasonably interferes with the individual plaintiffs' right to use and enjoy their property" and "with the individual plaintiffs' right to make full use of their land." They therefore assert that the ordinance constitutes "governmental regulation that has gone `too far'" and thus amounts to a regulatory taking without just compensation. They sue for damages for diminution in the value of their property and to enjoin enforcement of the ordinance. Further, they argue that there is no rational basis to justify the enactment of the ordinance and that it constitutes a "clear abuse of municipal discretion" and "an unreasonable, unnecessary, excessive, and oppressive abuse of the Township's police power which infringes on the individual property rights of the Plaintiffs." Thus, Plaintiffs also allege a substantive due process violation. However, as before, this allegation is subsumed in the takings claim, and therefore it is ripe only if the takings claim is ripe. Sandy Creek, 325 F.3d at 626.
Defendant argues that Plaintiffs seek monetary damages for the decrease in the fair market value of their land, but that such relief is not available under Texas law. Defendant cites City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995), for the proposition that "suits seeking money damages for alleged violations of the Texas Constitution are prohibited even if equitable relief is available." Thus, Defendant contends, "there is no state process available to the Plaintiffs for them to exhaust which would grant them the relief they seek," rendering the federal claims ripe. See Defendant Town of Hollywood Park's Brief on Juris dictional Issues ¶ 5. This argument need not detain the Court long. City of Beaumont v. Bouillion dealt withBivens-like damages claims for state constitutional torts. Bouillion, 896 S.W.2d at 146. The Court held that there is no implied private right of action for damages arising under the free speech and free assembly sections of the Texas Constitution. Id. at 147. Thus, although suits for equitable remedies for violations of constitutional rights are permitted, a private right of action for damages is not implied. That does not hold true for taking claims, however, where the Constitution itself expressly authorizes a right of action for damages. As the Court acknowledged: "Section 17 provides a textual entitlement to compensation in its limited context." Id. at 149. Thus, suits formoney damages are expressly permitted under the Texas Constitution, and cities may not assert sovereign immunity from such claims. Golden Harvest Co., Inc. v. City of Dallas, 942 S.W.2d 682, 688 (Tex.App.-Tyler 1997, writ denied).
Based on Article I, section 17's express authorization, Texas courts have routinely recognized a cause of action for inverse condemnation. An inverse condemnation may occur when the government physically appropriates or invades the property, or when it unreasonably interferes with the landowner's right to use and enjoy the property. Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex. 1994), cert. denied, 513 U.S. 1112 (1995); Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). Governmental restrictions on the use of property can be so burdensome that they result in a compensable taking. San Antonio River Auth. v. Garrett Bros., 528 S.W.2d 266, 273 (Tex.Civ.App.-San Antonio 1975, writrefdn.r.e.). The Texas Supreme Court has refused to draw a distinction between the exercise of the police power and eminent domain, "holding that one's property may not be taken without compensation under some circumstances even in the exercise of the police power." City of Austin v. league, 570 S.W.2d 389 (Tex. 1978). Texas courts allow Plaintiffs to be compensated for takings pursuant to the police power if an ordinance is not substantially related to the health, safety, or general welfare of the people or if it is unreasonable or arbitrary. City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 805 (Tex. 1984); Grunwald v. City of Castle Hills, 100 S.W.3d 350, 353 (Tex. App-San Antonio 2002, no pet.) (citing Mayhew v. Town of' Sunnyvale, 964 S.W.2d 922, 935 (Tex. 1998) (a compensable regulatory taking occurs if the governmental restrictions unreasonably interfere with the right to use and enjoy one's property). Thus, Texas provides an adequate procedure to address and compensate claims such as the Plaintiffs have alleged here. As a result, Plaintiffs' claim asserting a regulatory taking under the Fifth Amendment of the United States Constitution is not ripe, and is DISMISSED WITHOUT PREJUDICE. Because Plaintiffs' substantive due process takings claim is subsumed in the takings claim, Plaintiffs' claim asserting that the deer feeding ban has effected a taking in violation of the substantive due process component of the Fourteenth Amendment is likewise DISMISSED WITHOUT PREJUDICE.
In 1995, the Texas Legislature also enacted a statutory basis for inverse condemnation claims by passing the Private Real Property Rights Preservation Act. See TEX. Gov'x CODE ch. 2007. This Act creates a statutory basis for an inverse condemnation action. It applies to the adoption of an ordinance and its enforcement. Id. § 2007.003(a)(1), (4). However, it does not apply to an action by a municipality except for actions by a municipality that have an effect in its extraterritorial jurisdiction. Id. § 2007.003(b)(1). Therefore, it does not provide Plaintiffs with a remedy. However, it also recognizes that the provisions of the Act are not exclusive, but rather are in addition to other procedures or remedies provided by law. Id. § 2007.006. Thus, the Act does not infringe upon Plaintiffs' right to bring an inverse condemnation action under the Texas Constitution.
One ripe federal claim remains, however. As noted, Plaintiffs allege that "[t]he ordinance is overly broad and vague" and that it is "penal in nature and purports to impose fines for its violations." These allegations invoke the protections of substantive due process, but not the takings clause. John Corp., 214 F.3d at 585 (citing United States v. Insco, 496 F.2d 204, 208 (5th Cir. 1974) ("Vaguely phrased measures run afoul of substantive due process requirements by failing to convey with reasonable certainty the statute's intended sweep."); see also Cobb v. Wainwright, 666 F.2d 966, 969 (5th Cir. 1982) ("The due process clause of the Fourteenth Amendment prohibits states from holding an individual `criminally responsible for conduct which he could not reasonably understand to be proscribed."). Accordingly, this claim is not subsumed within the takings clause claim, and it is ripe for review. Plaintiffs seek declaratory and injunctive relief, asking the Court to declare the feeding ban ordinance invalid and enjoining the Town from enforcing it "and from prosecuting the criminal complaints for the violations of [the ordinance]."
However, Plaintiffs have asserted that, under the doctrine of Younger v. Harris, 401 U.S. 37 (1971), this Court should abstain from exercising jurisdiction. This Court concludes that the doctrine set forth in Younger prevents it from exercising its jurisdiction over the only ripe federal claim. Younger dictates that a federal court cannot enjoin a pending criminal trial in state court, absent exceedingly rare and extraordinary circumstances. Ballard v. Wilson, 856 F.2d 1568 (5th Cir. 1988). In a companion case to Younger, Samuels v. Mackell, 401 U.S. 66 (1971), the Supreme Court held that the same federalism principles underlying Younger also prevent a federal court from issuing declaratory relief when there is a pending state criminal proceeding. At least three of the Plaintiffs in this suit — Cherie Emick, Cathy Young, and Alyce Guthrie — have been prosecuted for violating the ordinance. Thus, the pending criminal proceedings bring this claim within the scope of Younger. Although not all the Plaintiffs are currently defending state proceedings, if the Court were to grant them the relief they seek, any future injunctive or declaratory relief would unavoidably affect the course and outcome of pending state proceedings. See Ballard, 856 F.2d at 1570 ("[A] declaratory judgment as to the constitutionality of the ordinance would actually resolve an issue central to the pending state proceedings."). Plaintiffs have not argued that any exception to the Younger doctrine, such as bad faith or harassment, applies in this case, and Plaintiffs may raise their constitutional defenses to the ordinance in their State proceedings. Plaintiffs have not asserted a claim for monetary relief related to the vagueness or overbreadth of the ordinance, and thus this Court concludes that abstention is mandated. Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs' substantive due process overbreadth and vagueness claims related to the feeding ban ordinance.
Defendant itself recognizes that 28 U.S.C. § 2283 precludes this Court from granting an injunction to stay proceedings in a State court except in extraordinary circumstances. However, section 2283 does not dispose of the issue, given that Plaintiffs have also sought declaratory relief.
State-law Claims
The Court now turns to whether it will exercise supplemental jurisdiction over the Plaintiffs' state-law claims. No federal claims remain in this suit. Accordingly, the Court concludes that it should notretain supplemental jurisdiction over Plaintiffs' state-law claims. Section 1367(c) provides that a district court "may decline to exercise supplemental jurisdiction over a claim . . . if the district court has dismissed all claims over which it had original jurisdiction." 28 U.S.C. § 1367(c)(3); see also Noble v. White, 996 F.2d 797 (5th Cir. 1993).
In addition, other factors weigh in favor of the Court's decision to decline supplemental jurisdiction. Regarding the first factor enumerated in § 1367(c), the supplemental claims involve novel questions of state law. Whether the Department's regulations exceed its statutory authority necessitates construction of a recently enacted statute that no Texas court has yet to construe and involves decisions regarding the authority of Texas regulatory agencies. These issues are much more appropriately addressed by a state court. Regarding the second, state law claims now unquestionably predominate. The Court concludes that the fourth factor does not apply. Considering the factors of judicial economy, convenience, fairness, and comity, the Court concludes that the balance of factors weighs in favor of declining supplemental jurisdiction. This case was filed in December 2003 and removed to this Court in January 2004. Thus, this case has been pending in this Court only two months, and the state-law claims could easily proceed in state court at this point. Although Defendant asserts that this Court has already determined the issues in its order denying a preliminary injunction, that order was issued based on the lesser burdens inherent in a proceeding for preliminary injunction. As the Court stated at the hearing, its order is in no way a ruling on the merits, and just as this Court would be free to revisit its findings and conclusions, so may the State court. Further, Plaintiffs chose State court as the forum for their claims, and Plaintiffs desire to proceed in State court still, as evidenced by their Motion to Remand. Last, the Court concludes that comity weighs heavily in favor of declining supplemental jurisdiction. "Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430, 441 (4th Cir. 2001) ("[G]overnmental actions that are violative of state law are properly challenged in state courts which exist, in part, to protect citizens from abuses of state law."). Thus, the state-law claims presented in this case are more properly considered by the state courts.
Conclusion
The Court DISMISSES WITHOUT PREJUDICE all of Plaintiffs' federal claims and REMANDS the case to the 73rd Judicial District Court of Bexar County, Texas. Plaintiffs' Motion to Remand (docket no. 32) is GRANTED. Defendant's 12(b)(6) Motion to Dismiss (docket no. 31) is DISMISSED AS MOOT. Each party shall bear its own costs and attorney's fees.