SINALOA LAKE OWNERS ASSOCIATION, et al., Plaintiffs/Appellants,
v.
CITY OF SIMI VALLEY, Defendant/Appellee,
James Doody, et al., Defendants-cross-defendants/Appellees.
v.
Donald G. TUDOR; Jennie P. Tudor, et al.,
Third-party-defendants/Appellees,
County of Ventura, Defendant-third-party-plaintiff/cross-claimant.
No. 86-6425.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 5, 1988.
Decided Jan. 6, 1989.
As Amended March 23, 1989.
As Amended on Denial of Rehearing and
Rehearing En Banc Aug. 9, 1989.
Michael M. Berger and M. Reed Hunter, Fadem, Berger & Norton, Los Angeles, Cal., for plaintiffs-appellants.
Walter G. Mortensen, Spray, Gould & Bowers, Ventura, Cal., for defendant-third-party-plaintiff-cross-claimant County of Ventura.
Henry J. Walsh and Carol A. Woo, Lawler, Bonham & Walsh, Ventura, Cal., for defendant-appellee City of Simi Valley.
Joel A. Davis, Deputy Atty. Gen., Los Angeles, Cal., for defendants-cross-defendants-appellees Doody, Persson, Jacinto, Ley, Stephenson and McEwan.
Appeal from the United States District Court for the Central District of California.
Before BRUNETTI, KOZINSKI and THOMPSON, Circuit Judges.
KOZINSKI, Circuit Judge:
We consider whether plaintiffs' fourth, fifth and fourteenth amendment claims are ripe for adjudication in federal court despite failure to exhaust state judicial remedies.
Facts
The complaint and stipulations of the parties set forth the following scenario:1 Plaintiff Sinaloa Lake Owners Association owns Sinaloa Dam and Sinaloa Lake, the lake behind the dam. The individual plaintiffs own property surrounding the lake. The lake and the dam are located within the County of Ventura, outside the City of Simi Valley.
The California Division of Safety of Dams (DSOD), a division of the California Department of Water Resources, is responsible for inspecting non-federally owned dams in California. On February 11, 1983, after conducting an inspection of Sinaloa Dam, DSOD sent a letter to James Stutzman, former president of the Association, directing the Association to take certain corrective actions and report back to DSOD no later than March 15, 1983.
Between February 25 and March 3, heavy rains raised the water level of Sinaloa Lake. On March 2, there were two slides on the face of the dam. Plaintiffs allege that these slides were caused by (1) a leak in a city-owned high-pressure water pipe running through the dam; (2) the county's actions in raising the dam's spillway, which allowed more water to accumulate behind the dam; and (3) the heavy rains. City officials immediately evacuated residents living below the dam and began pumping water out of the lake.
On March 3, defendant David Jacinto, a DSOD Associate Field Engineer, arrived at the dam and assumed control of the situation. He took additional steps to reduce the water level behind the dam. The Army Corps of Engineers inspected the dam and concluded it was stable.
On March 4, without advising plaintiffs, DSOD officials decided to breach the dam in order to drain the lake; this decision was not implemented immediately. By the next day, the water level was 10 to 12 feet below the high water mark. The city decided that the emergency was over, and advised evacuated residents to return to their homes.
On March 6, defendant James Doody, Division Chief of DSOD, countermanded the decision to breach the dam, and instead ordered workers to proceed with plans to lower the spillway. By March 8 the emergency was over: The water level was down 22 feet and DSOD promised to maintain that level to enable the Association to maintain fish in the lake.
On March 10, at the direction of DSOD, workers began lowering the spillway in order to reduce the risk of future problems. By that time, however, defendant Doody and other senior officials of DSOD had once again decided to breach the dam. The plaintiffs were not advised of the latest decision until a few hours before DSOD contractors were scheduled to begin breaching the dam at 4:00 p.m. on Friday, March 11.
In an attempt to obtain a temporary restraining order, plaintiffs secured an informal hearing before a Superior Court Judge that afternoon. The judge refused to act, however, because plaintiffs were unable to produce a completed engineering study or testimony from an engineer showing that the dam was safe. DSOD produced no evidence indicating that the dam was unsafe. No order was entered and no record was made of the in-camera proceedings; apparently the matter was not even assigned a case number. Immediately after the hearing, DSOD's contractors breached the dam, lowered the water level 25 feet from the high water mark, and drained 90 percent of the water from Sinaloa Lake.
Plaintiffs filed suit under 42 U.S.C. Sec. 1983 on December 16, 1983, alleging deprivation of their fourth, fifth and fourteenth amendment rights. Their second amended complaint was filed on July 2, 1984. On May 15, 1986, a month before the case was scheduled to go to trial, defendants moved for judgment on the pleadings, claiming that the case was not ripe for decision. The district court granted the motion as to all defendants. After their motion to amend the judgment was denied, plaintiffs timely appealed.
Discussion
We review the district court's grant of judgment on the pleadings de novo, taking all material allegations of the non-moving party as true and construing them in the light most favorable to that party. Judgment on the pleadings will not be granted unless "the allegations of the complaint itself clearly demonstrate that plaintiff does not have a claim." 5 C. Wright & A. Miller, Federal Practice & Procedure Sec. 1357, at 604 (1969). Motions for judgment on the pleadings, like motions to dismiss for failure to state a claim, must be viewed with particular skepticism in cases involving claims of inverse condemnation. See Hall v. City of Santa Barbara,
* Plaintiffs claim that defendants' actions in breaching the dam and destroying the lake amounted to a taking of their property without just compensation, in violation of the fifth amendment. Defendants argue, and the district court held, that this claim is not ripe because plaintiffs have failed to exhaust their state remedies.
Defendants rely on Williamson County Regional Planning Comm'n v. Hamilton Bank,
The second, and independent, hurdle established by Williamson County requires plaintiffs to "seek compensation through the procedures the State has provided for doing so" before turning to the federal courts. Id. at 194-95,
Plaintiffs, citing footnote 28 of Hall, contend that the second requirement of Williamson County is also inapplicable to physical invasion cases. That footnote, however, only relieves plaintiffs of the obligation to exhaust administrative remedies in physical taking cases--it does not excuse them from seeking just compensation through state procedures. Even in physical taking cases, compensation must first be sought from the state if adequate procedures are available.
Contrary to plaintiffs' assertions, this interpretation of Hall does not conflict with Williamson County. Williamson County only requires exhaustion of state judicial remedies when the state provides "an adequate process for obtaining compensation."
Unlike Hall, the taking here was effected by direct governmental action, not by an ordinance. California law has long provided a damages remedy for this type of taking claim. See Holtz v. San Francisco Bay Area Rapid Transit Dist.,
Plaintiffs argue that state remedies are inadequate because of the long delays before cases go to trial, and because of what they suggest is the California courts' longstanding hostility toward taking claims. They offer nothing to substantiate their claim that they will suffer unreasonable delay in state court, other than the bare assertion that their case would not go to trial for four years or more. Such a generalized assertion falls far short of the evidence needed to show the futility of resorting to state courts for relief. Indeed, the published available data seems to paint a different picture. According to information provided by the Ventura County Superior Court to the Judicial Council of California, the median time between the filing of a complaint and trial in civil non-jury cases in 1987 was less than three years. See Letter from Jay S. Widdows, Administrative Assistant, Ventura County Superior Court, to Alex Kozinski, Circuit Judge (July 22, 1988) (attaching data on median length of time for complaint-to-trial and at-issue memorandum-to-trial in Ventura County Superior Court).2 Moreover, the time from filing to trial is not a particularly helpful measure of delay in a state like California, which allows a plaintiff up to three years from date of filing to effect service. Cal.Civ.Proc.Code Sec. 583.210 (West Supp.1988). A more meaningful measure of delay is the time between the filing of the at-issue memorandum and trial, since filing of the at-issue memorandum places the matter on the civil active list. Cal.Super.Ct.R. 209 (West Supp.1988). That period was less than 8 months for civil nonjury trials and less than 10 months for civil jury trials in Ventura County in 1987. We cannot say that this delay is so excessive as to render resort to the state court system futile.
Nor are we swayed by the alleged "reluctance of the California State Court system to lend a sympathetic ear to private property owners in just compensation cases." Appellants' Opening Brief at 29. California courts have held on similar facts that property owners are entitled to present their claims for just compensation to a jury. See, e.g., Archer v. City of Los Angeles,
Finally, plaintiffs assert that defendants are barred by laches from raising Williamson County as a defense.3 Defendants respond that laches cannot bar their Williamson County defense because the failure to seek compensation in state court renders the taking claim unripe, and lack of ripeness deprives the court of subject matter jurisdiction. See Austin v. City and County of Honolulu,
II
The due process clause protects individuals against governmental deprivations of property without due process of law. U.S. Const. amend. XIV, Sec. 1. Plaintiffs contend that the DSOD's actions in breaching the dam and destroying the lake without providing plaintiffs adequate notice or a hearing amounted to a violation of due process.
A. As a threshold matter, we reject defendants' contention that the second prong of Williamson County requires exhaustion of available state compensation remedies before plaintiffs may pursue their due process claim in federal court. This requirement, derived from "the special nature of the Just Compensation Clause,"
Thus, the rationale for requiring exhaustion of state compensation remedies in taking cases does not extend to a claim that plaintiffs were denied due process.5 Indeed, the Supreme Court in Williamson County expressly distinguished procedural due process claims from taking claims, stating that due process may be violated regardless of the availability of post-deprivation remedies. See
Norco Construction, Inc. v. King County,
Nor does Cassettari v. County of Nevada,
B. We turn to the merits of plaintiffs' due process claim. At the core of the due process clause is the right to notice and a hearing "at a meaningful time and in a meaningful manner." Armstrong v. Manzo,
Defendants contend that Parratt v. Taylor forecloses the plaintiffs' due process claim. Parratt held that the deprivation of property "as a result of a random and unauthorized act by a state employee,"
Where the state has procedures, regulations or statutes designed to control the actions of state officials, and those officials charged with carrying out state policy act under the apparent authority of those directives, it makes no sense to say either that their conduct is "random" or that it is impossible for the state to provide a hearing in advance of the deprivation. The considerations underlying Parratt are simply inapplicable....
Plaintiffs' claims are not barred by Parratt.
The principle announced in Parratt is not, however, the only exception to the general requirement of notice and an opportunity to be heard prior to the deprivation of property. The Supreme Court has repeatedly held that summary governmental action taken in emergencies and designed to protect the public health, safety and general welfare does not violate due process. See, e.g., Hodel v. Virginia Surface Mining & Recl. Ass'n,
Plaintiffs contend that defendants are not entitled to rely on the emergency action defense because there was in fact no emergency, as should have been apparent from the fact that the lake was virtually empty when the dam was breached. Although there was no emergency at the time the dam was breached, states are given "great leeway in adopting summary procedures to protect public health and safety," even in the absence of an emergency in the usual sense. Mackey v. Montrym,
Notwithstanding the deference accorded to officials exercising summary powers to protect the public, their power to declare an emergency and thus eliminate the constraints of the due process clause is not without bounds. See, e.g., Virginia Surface Mining,
As already noted, plaintiffs alleged that by March 8 the emergency was over. Yet, at the direction of the DSOD, workers began lowering the spillway on March 10; and on March 11 the dam was breached and the lake destroyed. Accepting plaintiffs' allegations as true--as we must on this review from the grant of a motion on the pleadings--there would seem to have been no justification for the DSOD's failure to give plaintiffs notice and an opportunity for a hearing, however abbreviated. Plaintiffs have therefore stated a claim for denial of procedural due process.7III
Plaintiffs next assert that, in breaching the dam, defendants violated their rights to substantive due process. We have recognized that the due process clause includes a substantive component which guards against arbitrary and capricious government action, even when the decision to take that action is made through procedures that are in themselves constitutionally adequate. See Smith v. City of Fontana,
Defendants argue that special ripeness requirements nonetheless apply when substantive due process claims arise out of fact situations that also give rise to taking claims. They rely on Lake Nacimiento Ranch Co. v. County of San Luis Obispo,
We do not agree. In Lake Nacimiento we held that Parratt barred what plaintiffs styled a substantive due process claim but was in fact a procedural due process claim involving "an attack on the decision-making process itself."
Cassettari is even less on point. That case limits its discussion of ripeness to fifth amendment taking claims. Indeed, in explaining why Cassettari's taking claim was unripe, we distinguished cases involving claims based on substantive due process and the fourth amendment. We observed that in those cases, in contrast to taking cases, "the deprivation of a federal right occurs regardless of the availability of a state remedy."
Because we conclude that plaintiffs' substantive due process claim is ripe, we must next consider whether plaintiffs have stated a claim for relief. See Alcaraz v. Block,
Plaintiffs allege that the decision to breach the dam was originally made on March 4, 1983, and reaffirmed on March 10. Not only were these decisions kept secret without any legitimate reason, DSOD officials deceived plaintiffs with assurances that the dam would not be breached. Indeed, DSOD allegedly returned control of the lake to the plaintiffs at one point, promising to maintain the water level. In addition, plaintiffs allege that defendants well knew that the emergency was over by March 8, three days before defendants actually breached the dam. Plaintiffs thus claim that defendants breached the dam when they knew, or should well have been aware, that such an action was unjustified, and that they shrouded their decision in a veil of secrecy and deception wholly unjustified by the situation.9
A government entity's police and eminent domain powers go far beyond crisis management; the city certainly has the power to protect its citizens by breaching a dam it considers potentially, though perhaps not imminently, dangerous. But government power is a double-edged sword; if wielded in an abusive, irrational or malicious fashion it can cause grave harm. See Silverman v. Barry,
Our cases recognize that the due process clause places a substantive, as well as a procedural, limitation on the exercise of governmental power. In Vaughan v. Ricketts,
We reached a similar conclusion in Rutherford v. City of Berkeley,
Police and prison guard brutality are among the most egregious abuses of governmental power. But the fourteenth amendment's due process clause protects property no less than life and liberty. U.S. Const. amend. XIV, Sec. 1 ("[n]o State shall ... deprive any person of life, liberty, or property, without due process of law"). To the extent that arbitrary or malicious use of physical force violates substantive due process, there is no principled basis for exempting the arbitrary or malicious use of other governmental powers from similar constitutional constraints.11 Justice Harlan expressed this view eloquently in Poe v. Ullman,
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints....
Id. at 543,
In determining whether substantive due process rights have been violated, we will look to such factors as the need for the governmental action in question, the relationship between the need and the action, the extent of harm inflicted, and whether the action was taken in good faith or for the purpose of causing harm. See Rutherford,
The exercise of emergency powers is particularly subject to abuse. Emergency decision-making is, by its nature, abbreviated; it normally does not admit participation by, or input from, those affected; judicial review, as this case illustrates, is often greatly curtailed or non-existent. Exigent circumstances often prompt actions that severely undermine the rights of citizens, actions that might be eschewed after more careful reflection or with the benefit of safeguards that normally constrain governmental action. See generally Karlin, 17 Sw.U.L.Rev. at 653-57. Whether government officials invoked emergency powers when they knew, or well should have known, that no exigency justified use of such draconian measures, is therefore highly relevant in determining whether the government has violated the plaintiff's substantive due process rights.
We conclude that plaintiffs have stated a claim for a violation of substantive due process. Construed in the light most favorable to them, their allegations paint a picture of government officials bent on destroying the dam for no legitimate reason, and determined to conceal that decision until the last possible moment to prevent plaintiffs from taking advantage of available legal processes.14 This claim goes beyond the taking of plaintiffs' property; plaintiffs also claim that government officials abused the legitimate police powers entrusted to them.15 While defendants dispute these charges, that dispute cannot be resolved on a motion for judgment on the pleadings.
IV
Finally, plaintiffs allege that they were deprived of their right "to be secure in their persons, houses, papers, and effects, against unreasonable ... seizures," in violation of the fourth amendment. U.S. Const. amend. IV. Defendants once again respond that plaintiffs' claim is not ripe.16 They point to Cassettari v. County of Nevada,
We agree that plaintiffs' claim is precluded by Cassettari, where we stated:Cassettari also argues that when the County took his property without paying him for it, the County violated his fourth amendment right to be secure against unreasonable seizures. This argument is without merit. A claim for the taking by a state of private property for public use without just compensation is properly asserted under the fifth and fourteenth amendments.
Id. at 740 n. 7. The claim plaintiffs alleged under the fourth amendment is, in fact, a taking claim which is properly asserted under the fifth amendment. The claim is unripe under Williamson County,
Conclusion
The district court's judgment as to the taking and fourth amendment claims are affirmed; the judgment as to the procedural and substantive due process claims are reversed. We remand for further proceedings consistent with this opinion.
Notes
We treat the parties' stipulations as pro tanto amendments of the pleadings
We take judicial notice of these figures, contained in the reports of a public body, pursuant to Fed.R.Evid. 201(b)(2)
Plaintiffs filed this lawsuit in December 1983, yet it was not until May 1986, one month before trial was to begin, that defendants first raised a ripeness challenge. It is clear they knew from the beginning that plaintiffs had not exhausted their state compensation remedies. Moreover, even before Williamson County was decided in June 1985, defendants were on notice that claims under the just compensation clause were not ripe until available state compensation remedies had been exhausted. See Williamson County,
The district court also expressed concern about this delay:
[N]one of the defendants had ever moved to question the propriety of the case being here [in federal court] until here we are about one week before trial. I consider that to be dilatory and not in the best interest of the clients, necessarily. This request should have been raised at the outset in this case.
Reporter's Transcript, June 16, 1986, at 1-2.
Although plaintiffs' taking claim is not ripe for our review, it would be entirely appropriate on remand for the district court, in the interest of judicial economy and particularly in view of defendants' undue delay in raising Williamson County, see note 3 supra, to permit plaintiffs to amend their complaint to include a pendent state law taking claim. See, e.g., Rose v. City of Coalinga,
We note that the Supreme Court was faced only with a taking claim in Williamson County; plaintiffs did not appeal the denial of their substantive and procedural due process and equal protection claims.
Pursuant to these statutes, the DSOD supervises "the maintenance and operation of dams and reservoirs insofar as necessary to safeguard life and property from injury by reason of the failure thereof," Cal.Water Code Sec. 6100, and "may in emergency ... [t]ake such ... steps as may be essential to safeguard life and property." Id. Sec. 6111
Defendants argue that plaintiffs were not denied procedural due process because plaintiffs had an informal hearing before a judge of the Superior Court in attempting to obtain a temporary restraining order. If the facts are as plaintiffs allege, the rushed, off-the-record proceeding in which they participated does not satisfy due process under these circumstances. Due process requires notice and a hearing "at a meaningful time and in a meaningful manner." Armstrong,
At the hearing that afternoon, the judge refused to grant a TRO because plaintiffs did not produce an engineering study or testimony from an engineer showing that the dam was safe. Thus, as a result of alleged DSOD misbehavior, plaintiffs were unprepared to defend their rights in court. This is not due process. A few hours notice is as good as no notice at all when a meaningful court hearing requires plaintiffs to produce highly technical evidence.
Nor is the emergency action exception to the normal requirement of predeprivation process, see p. 1405 supra, relevant in this context. Virginia Surface Mining, North American et al., considered whether some form of hearing is required before the government acts in emergency situations. This inquiry is unrelated to the separate question of whether the government's action violated substantive constitutional constraints, even though the government's decision was reached in a procedurally correct manner
To the extent factual allegations made by plaintiffs are not entirely reflected in the complaint, plaintiffs can request leave to amend on remand. See Fed.R.Civ.P. 15(a); United States v. Webb,
In Graham v. Connor, --- U.S. ----,
As noted by Professor Norman Karlin, the freedoms granted by the bill of rights were cut from a single constitutional cloth:
Rights were owned by the people, as individuals, and never dichotomized into personal and property. It was to the contrary. The principle established by the Magna Carta and thus basic to the common law and later to the Constitution was the identification of liberty and property. Ownership of property was evidence of liberty. In solemn ceremony, it was there decreed that neither the King nor government could take property except per legem terrae. The reach was not procedural but substantive. Coke in his writings used the phrase interchangeably with "due process of law;" and, in this form, the concept was included in the fifth amendment of the United States Constitution. Life, liberty and property comprised an invulnerable trilogy....
Karlin, Back to the Future: From Nollan to Lochner, 17 Sw.U.L.Rev. 627, 637-38 (footnotes omitted). See also Pilon, Legislative Activism, Judicial Activism, and the Decline of Private Sovereignty, in Economic Liberties and the Judiciary 183, 200 (J. Dorn & H. Manne eds. 1987).
Although Justice Brennan (speaking for four Justices) dissented on procedural grounds, his substantive views apparently enjoyed the support of a majority of the Court. See San Diego Gas & Electric Co. v. City of San Diego,
In Graham,
Although plaintiffs' allegations that the defendants failed to conduct statutorily required engineering studies or to inform them of their decision to breach the dam form the basis of their procedural due process claim, these allegations are also relevant to their substantive due process claim; indeed, it is almost inevitable that there will be some overlap between the allegations supporting both claims. As Judge Posner recently noted:
the line between "procedure" and "substance" is hazy in the setting of the regulation of land uses. The denial of the plaintiffs' site plan without a full statement of reasons is what gives the denial such arbitrary cast as it may have, and thus lends color to the claim of irrationality, which is the substantive due process claim; but the failure to give reasons is also the cornerstone of the procedural due process claim. It is no good saying that if a person is deprived of property for a bad reason it violates substantive due process and if for no reason it violates procedural due process. Unless the bad reason is invidious or irrational, the deprivation is constitutional; and the no-reason case will sometimes be a case of invidious or irrational deprivation, too, depending on the motives and consequences of the challenged action.
Coniston Corp. v. Village of Hoffman Estates,
Plaintiffs allege that, among other things, DSOD officials intentionally delayed telling them about the decision to breach the dam until just hours before the breach occurred. This was designed, plaintiffs claim, to prevent them from seeking the legal protection to which they were entitled. Again, it is no defense to this charge that plaintiffs had a hearing on the afternoon the dam was breached. Taking the facts as plaintiffs allege them, the hearing was meaningless, as plaintiffs had inadequate time to prepare; it cannot rebut the charge that DSOD officials deliberately attempted to prevent plaintiffs from resorting to available legal processes
They also claim that Parratt and the emergency seizure cases, discussed pp. 1408 supra, foreclose this claim. As we indicated above, however, Parratt is limited to procedural due process claims; it has no relevance in the context of a fourth amendment claim. See Robins v. Harum,