Cormack v. Settle-BeshearsCormack v. Settle-Beshears
Michael Mosley, argued, North Little Rock, Arkansas, for appellee.
MURPHY, Circuit Judge.
J. Michael Cormack commenced this
Cormack owns property on which he has been operating a golf driving range. In 1999 he entered into a written lease agreement allowing part of his property to be used for the sale of fireworks to the general public between June 20 and July 5 of every year. The lease was to run for ten years, after which it could be extended for another twenty. The lessee paid Cormack a flat fee as well as a percentage of the firework sales. Cormack‘s property was outside the Van Buren city limits until September 2004, when the city council of Van Buren enacted an ordinance annexing various parcels of unincorporated property within the city boundaries. Cormack alleged in his complaint that he received no notice from the city that it was considering annexation and that he only became aware of the possible annexation when a local television reporter told him about it. Despite Cormack‘s opposition, the city annexed his property.
On June 17 Settle-Beshears informed Cormack‘s counsel that she would direct code enforcement to “shut the business down” if he went ahead with his plans. Police officers Sandlin and Chris Hoffsomer went to Cormack‘s property on June 20 and cited him for violating the city ordinance. Cormack‘s complaint alleges that the officers shut down his business “upon threat of arrest and deprivation of civil liberty.” At oral argument counsel stated that the officers wrapped police tape around the fireworks tent and told Cormack they would arrest him if he removed the tape. Cormack contested his citation in state court and was found guilty in a criminal proceeding in municipal court. He appealed, and the case is still pending before an Arkansas district court.
On the same day that Cormack was cited for violating the city ordinance, he filed a complaint in federal district court under
Cormack has not raised any First Amendment argument on appeal so it is waived, see Hacker v. Barnhart, 459 F.3d 934, 937 n. 2 (8th Cir.2006), and we turn to his claim under the Fifth Amendment. He argues that Van Buren‘s annexation of his property and enforcement of its ordinance prohibiting the sale of fireworks amounted to a regulatory taking. Although under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), federal courts are barred from considering the merits of a takings claim until a private litigant exhausts state remedies, Cormack believes that an exception applies to this case. If a state‘s remedies are inadequate or unavailable, exhaustion is not required, see id. at 196-97, and Cormack claims that Arkansas has no remedy which would adequately compensate him for the taking.
At oral argument counsel for Cormack contended that case law since Collier demonstrates that Arkansas state remedies are inadequate, but he did not say how the regulatory takings jurisprudence of Arkansas is inconsistent with the Supreme Court‘s leading decisions, let alone demonstrates that Arkansas courts provide less constitutional protection than the federal courts. While the Arkansas Supreme Court phrases its evaluation of takings claims differently from the United States Supreme Court, there is simply no indication that Arkansas gives landowners less protection than “the federal baseline.” Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 2668, 162 L.Ed.2d 439 (2005).
Cormack next argues that the way in which the city annexed his land violated the Fourteenth Amendment by failing to provide him with due process before the annexation. He claims that he was not given notice of the contemplated annexation fifteen days before the Van Buren city council‘s hearing on the annexation ordinance as required by Arkansas law. See
We assume as we must, see Westcott, 901 F.2d at 1488, that the city council failed to provide Cormack the notice which is required by Arkansas law. This violation of Arkansas law does not offend the federal Constitution, however, because “a sovereign vested with the power of eminent domain may exercise that power consistent with the constitution without providing prior notice, hearing or compensation so long as there exists an adequate [postdeprivation] mechanism for obtaining compensation.” Collier, 733 F.2d at 1314. Because Cormack has not shown that Arkansas lacks an adequate postdeprivation mechanism to provide him with just compensation for the alleged taking, his due process claim must fail.
Cormack contends that the city violated his Fourth Amendment rights when its agents issued him a citation for selling fireworks on his property and put up police tape on the fireworks tent and threatened him with arrest if he removed the tape. The district court abstained under Younger v. Harris from exercising jurisdiction over this claim. Younger abstention is appropriate when (1) the federal action would disrupt an ongoing state judicial proceeding (2) which implicates important state interests and (3) which provides an adequate opportunity to raise constitutional challenges. Middlesex County Ethics Comm. v. Garden State Bar Ass‘n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Here, the state criminal proceedings against Cormack are still pending before an Arkansas district court in which he can presumably raise the Fourth Amendment in defense. In these circumstances abstention is appropriate. Moreover, state interests in land use regulation may also be implicated in that case. See Night Clubs, Inc. v. City of Fort Smith, 163 F.3d 475, 480 (8th Cir.1998).
We conclude that the district court properly dismissed Cormack‘s complaint and accordingly affirm its judgment.