Not Precedential

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________
No. 10-1138
_____________
THOMAS R. WHITTAKER; CHRISTY L. WHITTAKER; EDNA J. HAMILTON,
as Executrix of the Estate of David C. Hamilton,
Appellants
v.
COUNTY OF LAWRENCE; TOWNSHIP OF NESHANNOCK;
LAWRENCE COUNTY ECONOMIC DEVELOPMENT CORPORATION;
REDEVELOPMENT AUTHORITY OF LAWRENCE COUNTY;
STEVE J. CRAIG; DANIEL J. VOGLER; FRANK TELESZ; JAMES GAGLIANO, JR.;
DENNIS F. ALDUK; JOSEPH CAMINITI; RYAN KEGEL; JON NATALE;
GALE E. MEASEL, JR.; ROBERT DEL SIGNORE, SR.; LINDA NITCH
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:04-cv-1092)
District Judge: Hon. Nora Berry Fischer
Submitted Under Third Circuit LAR 34.1(a)
May 13, 2011
Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges.
(Filed: July 15, 2011)
_____________
OPINION
_____________
CHAGARES, Circuit Judge.
Thomas Whittaker, Christy Whittaker, and Edna Hamilton (the Property

Owners) appeal from the District Courts dismissal of their case. For the reasons set
forth below, we will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly recite
the facts. The Property Owners all owned parcels of property within Millennium Park,
an area of approximately 530 acres that had been identified for industrial development by
the Lawrence County Economic Development Corporation (LCEDC), which is a
private non-profit corporation formed by Lawrence County. When a potential buyer
became interested in the Property Owners land, the LCEDC attempted to purchase the
property. These negotiations were unsuccessful, and the County then created the
Redevelopment Authority of Lawrence County (RALC), which had the authority to
condemn property. Declarations of Taking were filed in the Lawrence County Court of
Common Pleas against the Property Owners parcels on July 29, 2004.
Knowing that the condemnation of their property was imminent, the Whittakers
filed an action in federal court under 42 U.S.C. 1983 on July 23, 2004, and Hamilton
filed a similar action on July 27, 2004. The defendants filed motions to dismiss these
cases, but the District Court stayed these actions pending the outcome of the eminent
domain proceedings in Pennsylvania state court as well as the United States Supreme
Courts decision in Kelo v. City of New London. The Whittakers subsequently filed a
second suit naming additional defendants, and that action was consolidated with their
2
previous action and the Hamilton suit in August of 2005. On October 15, 2007, the
District Court lifted the stay on the federal action and ordered that a single amended
complaint be filed, containing all of the parties allegations. The case was then stayed
again pending the outcome of the Pennsylvania adjudication of the takings.
On December 22, 2008, the Pennsylvania Commonwealth Court, sitting en banc,
concluded that the RALC improperly condemned the property at issue. The District
Court reopened the case, and a renewed motion to dismiss was filed. The District Court
granted the motion on December 7, 2009, concluding that the Property Owners had failed
to state a claim on any of their federal causes of action, and declining to exercise
supplemental jurisdiction over the remaining state law claims. The instant appeal
followed.
II.
The District Court had jurisdiction over this case pursuant to 28 U.S.C. 1331
and 1367, and this Court has jurisdiction under 28 U.S.C. 1291. We exercise de novo
review of a District Courts dismissal under Federal Rule of Civil Procedure 12(b)(6).
Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).
III.
The majority of the Property Owners argument focuses on their contention that
the District Court erred in reading Kelo as providing a national standard for what
constitutes a public use for purposes of the Fifth Amendments takings clause. The
Fifth Amendments takings clause provides nor shall property be taken for public use,
without just compensation, and the Property Owners argue that in determining whether
3
something constitutes a public use, we must look to state law on the subject. They rely
heavily on the fact that the Pennsylvania Commonwealth Court, in In re Condemnation
by Redevelopment Authority of Lawrence County, 962 A.2d 1257 (Pa. Commw. Ct.
2008), held that Pennsylvania law does not permit eminent domain to be used to foster
economic development. According to the Property Owners reading of Kelo, the Fifth
Amendment permits economic development to constitute a public use, but courts should
look to state law to determine whether that state has made such a use a public use. We
disagree.
The question facing the Supreme Court in Kelo was whether the Fifth
Amendments takings clause permitted economic development to constitute a public use.
The Court concluded that economic development could constitute a public use, stating
that [p]romoting economic development is a traditional and long-accepted function of
government. Kelo v. City of New London, 545 U.S. 469, 484 (2005). The Court went
on to emphasize that nothing in our opinion precludes any State from placing further
restrictions on its exercise of the takings power, and noted that [t]his Courts authority .
. . extends only to determining whether the Citys proposed condemnations are for a
public use within the meaning of the Fifth amendment to the Federal Constitution. Id.
at 489-90.
We do not believe that this language requires that we look to what limitations
various states impose on their own eminent domain powers to determine whether the
taking at issue violates the Fifth Amendment. Instead, we find the Courts statement in
Kelo to be clear: a taking for purposes of economic development satisfies the Fifth
4
Amendments public use requirement. Were we to accept the Property Owners

argument and allow states to define what constitutes a public use for purposes of the Fifth
Amendment, we would be permitting the states to limit not only their own actions, but
also the ability of the federal government to exercise its eminent domain power. Rather
than doing this, we will take Kelo at its face value, and interpret it as providing a federal
constitutional floor for the definition of a public use that allows states to build upon this
floor should they choose to do so. Although we need not resolve the question of whether
the conduct in this case violated Pennsylvanias state laws or constitution, we do hold
that such conduct does not violate the Federal Constitution and we will affirm the District
Courts dismissal of the Property Owners Fifth Amendment takings claim.
The Property Owners next argue that the District Court erred in dismissing their
substantive due process claim. In reviewing the conduct of executive officials, only
conduct that shocks the conscience rises to the level of a substantive due process
violation. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Whether conduct
shocks the conscience is a question of law for the court to decide. Benn v. Universal
Health Sys., Inc., 371 F.3d 165, 174 (3d Cir. 2004). The Property Owners assert that the
Lawrence County Commissioners authorized the use of eminent domain power despite
no indication of blight, as required by Pennsylvanias Urban Redevelopment Law, and
that this deliberate misuse of state authority shocks the conscience.
In dismissing this claim, the District Court appears to have relied on the fact that
there was no conduct alleged that violated the Federal Constitution, and this Courts
statement that [a] bad-faith violation of state law remains only a violation of state
5
law. Appendix (App.) 51 (quoting United Artists Theatre Circuit, Inc. v. Twp. of
Warrington, 316 F.3d 392, 402 (3d Cir. 2003)). We agree with the policy embodied in
that statement, even if the District Court slightly overstated the principal. First, an
underlying constitutional violation is not required to state a substantive due process
claim, and some violations of state law may shock the conscience. This, however, does
not mean that every violation of state law is constitutionalized through the application
of the substantive due process clause, and the District Court was properly concerned with
preventing this provision from turning into a broad authorization to review state actors
compliance with state law. On several occasions, this Court has implied that a violation
of state law will constitute conscience shocking behavior when it contains allegations of
corruption, self-dealing, bias against an ethnic group, or additional facts that suggest[]
conscience-shocking behavior. Chainey v. Street, 523 F.3d 200, 220 (3d Cir. 2008); see
also Eichenlaub v. Township of Indiana, 385 F.3d 274, 286 (3d Cir. 2004). In other
words, a state officials failure to follow state law does not, by itself, shock the
conscience in the absence of additional facts. No such additional facts are presented in
this case; instead, the Property Owners simply allege that the defendants did not follow
state law in taking their property. While this certainly is not conduct without a remedy,
the remedy is not provided by the Federal Constitutions substantive due process clause.
For this reason, we will affirm the District Courts dismissal of the substantive due
process claim.
The Property Owners also allege that the District Court erred in dismissing their
equal protection claims. In bringing this claim, they proceeded as a class of one,
6
arguing that the action in this case amounted to intentional and arbitrary discrimination
without a rational basis. Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The Property
Owners assert that because the property was not blighted, there was no legitimate
government interest in exercising eminent domain over the property and that the
defendants acted irrationally in condemning it.
We again disagree with the Property Owners argument. Much as the Federal
Constitutions definition of public use does not depend on state law, we do not refer to
state law in establishing whether the government has a legitimate interest in taking the
property. States have a legitimate government interest in exercising their eminent
domain power for the public use, which, for purposes of the Federal Constitution,
includes economic development, as discussed above. The Property Owners argument
that there was no legitimate government interest in this case, therefore, is without merit.
Further, there was no arbitrary singling out of the properties in question in the present
case. Instead, the properties were chosen because they were the only properties not
purchased within the Millennium Park area, meaning that all similarly situated
individuals were treated similarly in this case. In sum, the state action both advanced a
legitimate government interest and was not discriminatory. That state law may place
further limitations on the use of eminent domain power does not cause a federal equal
protection problem, and we will affirm the District Courts dismissal.
The Property Owners also find error in the District Courts treatment of their
conspiracy claims, its discussion of qualified immunity, and its dismissal of their state
law claims. Because we have not found any underlying error in the District Courts
7
treatment of the substantive claims, however, we need not address any of the Property
Owners arguments on these issues. A conspiracy to engage in conduct that does not
amount to a constitutional violation is not a violation of 1983, and no immunity is
necessary if there was no unconstitutional act. Further, as we agree that all of the federal
claims were properly dismissed, the District Court did not err in declining to exercise
supplemental jurisdiction over the state law claims. See 28 U.S.C. 1367(c)(3). We
will, therefore, affirm the District Courts treatment of all of these issues as well.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.

Not Precedential

Uploaded by

Copyright:

Available Formats

Not Precedential

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Not Precedential

Uploaded by

Copyright:

Available Formats

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

Thomas Whittaker, Christy Whittaker, and Edna Hamilton (the Property

Amendments public use requirement. Were we to accept the Property Owners

You might also like