MEMORANDUM AND ORDER
This is a civil action arising out of the rezoning of two parcels of land in Montgomery County, Maryland. Plaintiffs hold title to the land as trustees for Gaithersburg Association, a general partnership comprised of the former stockholders of Urbana Development Corporation [Urbana], a defunct Maryland corporation. Defendants are the State of Maryland, Montgomery County, Maryland [County], The Maryland National Capital Park and Planning Commission [Commission], The Montgomery County Council [Council], and the individual Council members who voted for the rezoning resolution.
Before reaching the merits of the motions to dismiss which are the subject of this memorandum and order, a review of the stormy and litigious history of the attempted development of the parcels is necessary. In 1965, Urbana purchased the land which was zoned R-R (rural residential) and thereafter sought to have it reclassified to permit industrial use. The Montgomery County Council sitting as the District Council,
see Annotated Code of Maryland,
art. 66D, § 8-101 (Supp.1976), approved Urbana’s application and the property was rezoned to 1-1 (light industrial). The rezoning was affirmed by the Maryland Court of Appeals.
Kirkman v. Montgomery County Council,
Following the adoption of Resolution 7-797, the trustees appealed the Council’s decision to the Circuit Court for Montgomery County. The circuit court rejected the trustees’ contention that the downzoning deprived them of property rights without just compensation in violation of the fifth and fourteenth amendments to the Constitution and article three, section forty of the Maryland Constitution,
In re
Application No. F-805, Law No. 36699 (Mont.County Cir.Ct., filed June 28, 1974) at 9-10.
1
The circuit court accepted the trustees’ contention that the reclassification was a local map amendment and reversed the Council’s action. The Council appealed and the case was heard by the Maryland Court of Appeals following the issuance of a writ of certiorari to the Maryland Court of Special Appeals. The Court of Appeals reversed, finding that the reclassification amounted to comprehensive rezoning which “bore a substantia] relationship to the public health, comfort, order, safety, convenience, morals and general welfare.”
County Council v. District Land Corp.,
Count I, which contains thirty-eight paragraphs incorporated by reference in the three other counts, alleges that the reclassification is an unlawful taking in violation of the fifth amendment to the Constitution and article 23 of the Maryland Declaration of Rights and article 3, § 40 of the Maryland Constitution. Count II alleges that the defendants and their agents have acted to deny plaintiffs rights guaranteed by 42 U.S.C. § 1983. Count III alleges that defendants have conspired to violate plaintiffs’ civil rights in violation of 42 U.S.C. § 1985(3). Count IV alleges both tortious interference with contract rights and tortious abuse of process by defendants.
Plaintiffs seek injunctive relief forbidding the defendants from interfering with the trustees’ development of the tract under the 1-1 zoning classification. Plaintiffs also seek one million dollars for the alleged uncompensated taking, nominal monetary damages against all defendants on Counts II, III and IV, costs, and other relief that the court deems appropriate. All defendants have moved to dismiss.
In Count I, plaintiffs have competently alleged a cause of action for violation of their constitutional rights under the fifth and fourteenth amendments to the Constitution.
Cuyahoga River Power Co. v. City of Akron,
Defendant Commission contends that the court lacks subject matter jurisdiction over it because it is not a person within the meaning of the Civil Rights Act. The question was expressly left open by Judge Young in
Donohoe Construction Co. v. Maryland Nat. Cap. Park & Planning Comm’n,
Thus, although the Commission has local functions and responsibilities, it appears that the General Assembly has created the Commission as the state agency responsible for coordinating planning, zoning, and recreational activities within the Washington metropolitan area which otherwise would be the sole responsibility of the counties. Even though Prince George’s and Montgomery Counties exercise some control over the Commission, the extent to which they do so is determined by the General Assembly and not by the county charters or the county laws. The powers and duties of the Commission, created by the General Assembly, are solely within the control of the General Assembly.
For these reasons, we find that the Commission is properly characterized as a state agency for the purpose of determining its right to invoke the doctrine of sovereign immunity.
As a state agency, the Commission is not a person within the meaning of the Civil Rights Act.
Burt v. Board of Trustees,
Plaintiffs do not specify in the complaint whether the individual defendants are being sued in their official or individual capacities or both. Plaintiffs seek monetary and injunctive relief from the Council members so presumably they have been sued in both capacities. Although jurisdiction does exist over the Council members for equitable claims when sued in their official capacities, damage claims against
*941
the members in their official capacities cannot be maintained under the Civil Rights Act because they are ' extensions of the county.
Bennett v. Gravelle,
Despite the fact that the Council members are persons within the meaning of the Civil Rights Act, in order to state a claim for relief under 42 U.S.C. § 1985(3), plaintiffs must satisfy the rule set forth in
Griffin
v.
Breckenridge,
The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.
Count IV contains state law claims alleging that defendants’ actions constituted both a tortious interference with a contractual relationship and a tortious abuse of process. Pendent jurisdiction exists whenever federal and state claims derive from a common nucleus of operative facts such that a plaintiff would ordinarily try them all in one proceeding.
United Mineworkers v. Gibbs,
In Count I, the trustees allege that actions by the State, County, Council, and Commission deprived them of their property without just compensation, in derogation of rights guaranteed by the fifth amendment. The defendants contend res judicata is a bar to the allegations. Before the court addresses the merits of defendants’ motions, some discussion of the procedural steps involved in a review of a zoning decision is in order. Following the Council’s adoption of Resolution 7-797, the trustees had two avenues through which they could attempt to escape the effects of the rezoning. The trustees could have challenged Resolution 7-797’s validity either because it was a local map amendment rather than comprehensive rezoning or because as comprehensive rezoning it did not bear a substantia] relationship to the public health, safety, and general welfare.
See Roberts
v.
Grant,
Defendants argue that the trustees presented the taking issue in their appeal to the Montgomery County Circuit Court and that having raised the issue in the state proceeding, the trustees are foreclosed from relitigating the issue here.
The circuit judge framed the issues on appeal as:
1. Was [the rezoning] a true sectional map amendment or was it two local map amendments disguised as comprehensive rezoning?
2. Does the record establish that the District Council’s adoption of this sectional map amendment is discriminatory, arbitrary, capricious and illegal, and
3. The [trustees] pose the following as their third issue for consideration by this Court:
The action of the District Council was an unlawful deprivation of the rights of the owners to enjoy, own and dispose of their property, as secured to them, under the Fourteenth Amendment of the Constitution of the United States, Article Twenty-three of the Declaration of Rights of Maryland and Article Three, Section Forty of the Constitution of Maryland.
In re
Application No. F-805, Law No. 36699 (Mont.County, Md.Cir.Ct. filed June 24, 1974) at 7. As previously noted, the court determined that the rezoning was not a taking. The court found Resolution 7-797 to be a local map amendment, however, and reversed the Council.
Id.
at 9-10. On appeal, the Maryland Court of Appeals reversed, finding that the rezoning was both comprehensive and substantially related to the public good.
County Council v. District Land Corp.,
The heart of the res judicata doctrine is the public policy that all litigation must at some time end and once tried, issues which were tried or should have been tried are settled forever, as between the parties.
Baldwin v. Iowa State Traveling Men’s Ass’n,
Despite the trustees’ assertions that “Judge Miller elevated Plaintiffs’ constitutional references over the role that Plaintiffs had intended for them,” the trustees’ petition on appeal, which contains the following language, belies their contention:
The [Trustees] . . respectfully show:
. That said action [rezoning] deprives your Petitioners of the beneficial use of their property without due process of law and without equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States and in further violation of Article 23 of the Maryland Declaration of Rights of the confiscation of property without just compensation contrary to rights protected under the Fifth Amendment of the Constitution of the United States and Article III, Section 40 of the Constitution of Maryland.
*943 Petition on Appeal, In re Application No. F-805, Law No. 36699 (Mont. County Cir. Ct., filed July 26, 1972). 3
The Supreme Court in
Rooker v. Fidelity Trust Co.,
If the constitutional questions stated in the bill actually arose in the cause, it was the province and duty of the state courts to decide them; and their decision, whether right or wrong, was an exercise of jurisdiction. If the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding. Unless and until so reversed or modified, it would be an effective and conclusive adjudication.
The trustees argue that a jurisdictional, infirmity did exist because the taking question was not properly before the circuit court and that Count I is therefore not barred by res judicata. The trustees’ argument begins with the following language from
County Council v. District Land Corp.,
While both District Land and the Trustees in their appeals to the lower court challenged the idea that the rezoning bore a reasonable relation to the general welfare, in the briefs which they filed there and at argument before us they seek to skirt the issue by relying on the notion that the Council acted in bad faith in its effort to achieve an improper purpose and thus reached a result which was both arbitrary and discriminatory. This argument must fail if we confine ourselves to a consideration of only that which was properly before the trial court, a problem to be hereinafter considered. With the foregoing as their point of departure, the trustees argue that the Maryland Court of Appeals, and presumably the circuit court, lacked jurisdiction to decide the taking question because the appeal was confined to a review of the administrative record. At first blush, the trustees’ position has some facial validity, but a closer analysis reveals that because their reliance on District Land is misplaced, their major premise is faulty and their position without support.
In the circuit court, the trustees introduced depositions and correspondence of state officials in an effort to impugn the Council’s motive in enacting Resolution 7— 797. On appeal, the Court of Appeals held that, in the absence of an allegation of fraud, inquiry into the Council’s motive was improper, and the circuit court erroneously relied on Maryland Rule BIO in admitting the trustee’s evidence. Rule BIO provides “Additional evidence may be allowed when permitted by law.” Far from a broad holding that appeals of zoning decisions are limited solely to the administrative record, the Court of Appeals simply held the trustees’ evidence was not permitted by law and therefore was not properly admitted.
A number of Maryland cases show that under the B Rules the trustees could raise the taking question on appeal to the circuit court and present additional evidence showing that the zoning was confiscatory. In
Tauber v. Montgomery County Council,
It is apparent that, contrary to the trustees’ assertion, they had the opportunity to present the taking question to the circuit court and in fact did so. The trustees made a tactical choice to challenge the zoning by discrediting the Council’s motives. Although the Court of Appeals held that mode of attack improper, the Court of Appeals did not restrict the trustees’ ability to introduce other evidence to prove their fifth amendment claim. The trustees simply did not prove to the satisfaction of the circuit court that the enactment of Resolution 7 ■ 797 constituted a taking. The trustee’s failure to appeal the taking question in the Maryland appellate courts does not aid them in their attempt to collaterally attack that judgment. The Court in
Chicot County Drainage District v. Baxter State Bank,
The remaining question is simply whether respondents having failed to raise the question in the proceeding to which they were parties and in which they could have raised it and had it finally determined, were privileged to remain quiet and raise it in a subsequent suit. Such a view is contrary to the well-settled principle that res judicata may be pleaded as a bar, not only as respects matters actually presented to sustain or defeat the right asserted in the earlier proceeding, “but also as respects any other available matter which might have been presented to that end.”
Even if the court were to assume that the trustees are correct in arguing that the circuit court lacked subject matter jurisdiction to consider the taking question in an administrative appeal, the fact remains that the circuit court rendered a judgment on that issue.
The Supreme Court in
Stoll v. Gottlieb,
Every court in rendering a judgment, tacitly, if not expressly, determines its jurisdiction over the parties and the subject matter. An erroneous affirmative conclusion as to the jurisdiction does not in any proper sense enlarge the jurisdiction of the court until passed upon by the court of last resort, and even then the *945 jurisdiction becomes enlarged only from the necessity of having a judicial determination of the jurisdiction over the subject matter. When an erroneous judgment, whether from the court of first instance or from the court of final resort, is pleaded in another court or another jurisdiction the question is whether the former judgment is res judicata. After a Federal court has decided the question of the jurisdiction over the parties as a contested issue, the court in which the plea of res judicata is made has not the power to inquire again into that jurisdictional fact. We see no reason why a court in the absence of an allegation of fraud in obtaining the judgment, should examine again the question whether the court making the earlier determination on an actual contest over jurisdiction between the parties, did have jurisdiction over the subject matter of the litigation.
Consistent with Stoll, section 10 of the Restatement of Judgments (1942) provides:
RES JUDICATA AND JURISDICTION OVER THE SUBJECT MATTER.
(1) Where a court has jurisdiction over the parties and determines that it has ■ jurisdiction over the subject matter, the parties cannot collaterally attack the judgment on the ground that the court did not have jurisdiction over the subject matter, unless the policy underlying the doctrine of res judicata is outweighed by the policy against permitting the court to act beyond its jurisdiction.
(2) Among the factors appropriate to be considered in determining that collateral attack should be permitted are that
(a) the lack of jurisdiction over the subject matter was clear;
(b) the determination as to jurisdiction depended upon a question of law rather than of fact;
(c) the court was one of limited and not of general jurisdiction;
(d) the question of jurisdiction was not actually litigated;
(e) the policy against the court’s acting beyond its jurisdiction is strong.
This is not a case in which the lack of subject matter jurisdiction was clear because as the discussion
supra
concluded, it is the opinion of this court that the circuit court, in fact, did have jurisdiction. Moreover, as a court of general jurisdiction, Md. Const., art. IV, §§ 1,19, and 20;
First Fed. Commodity Trust Corp.
v.
Comm’r,
Under the strict mutuality of estoppel doctrine, only the parties in the prior litigation were bound by the judgment,
see, e. g., R. D. Wood Co. v. Phoenix Steel Corp.,
Before collateral estoppel may be involved, however, three requirements must be satisfied:
1) The issue decided in the prior litigation must be identical with the issue presented in the action in question;
2) The prior litigation must have resulted in a final judgment on the merits; and
3) The party against whom the estoppel is asserted must have been a party, or in privity with a party, to the prior litigation.
Blender-Tongue
v.
University of Illinois Foundation,
No independent federal jurisdiction exists over either the County or the Council following the dismissal of Count I. Even though the state law claims derive from a common nucleus of operative facts, this court may not exercise pendent jurisdiction over either of the defendants and must dismiss the claims in Count IV against them for lack of subject matter jurisdiction.
Aldinger v. Howard,
The remaining question is whether the claims in Counts II and IV state a cause of action against the individual defendants. In Count II, the trustees allege that the individual council members’ actions in adopting Resolution 7-797 denied the trustees “their right to equal protection of the laws and deprived [the trustees] of their constitutional right not to have their property taken without just compensation.” The council members argue that they are absolutely immune under the federal common law for acts done while performing valid legislative functions and that the claims in Count II must be dismissed. •
The trustees’ previous attempt to delve into the motives of the Council was rejected by the Court of Appeals.
County Council v. District Land Corp.,
In these circumstances, the case comes down to a situation where the city is zoning and rezoning extraterritorial property which it owns in accordance with its constitutionally conferred statutory powers. “One has no constitutional right to a ‘remedy’ against the lawful conduct of another.” Senn v. Tile Layers Union,301 U.S. 468 , 483,57 S.Ct. 857 , 864,81 L.Ed. 1229 (1957). The remedy for any wrongs which appellants may have suffered or may suffer at the hands of the municipality in the exercise of its extraterritorial zoning powers does not lie under § 1983 of the Civil Rights Act.
Although closely related, the immunity argument raised by the Council members provides an independent basis for dismissal. The scope of the immunity enjoyed by local legislators to the section 1983 claims in Count II is, of course, a question of federal and not state law.
Qualls v. Parrish,
The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch (10 U.S.) 87, 130,3 L.Ed. 162 , that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned.
Accordingly, it is this 23rd day of November, 1977, ORDERED that defendants’ motions to dismiss be, and hereby are, GRANTED.