Opinion
IP 99-0141-C-T/G
August 12, 2000.
Entry on Motion to Dismiss
The Defendants, Meridian Street Preservation Commission ("MSPC"), David Kingen, Helga Behroozi, Larry Dorfman, David Halvorson, Rebecca Marcus, Jane Nolan and Robert Pinkley, in their official capacities as members of the MSPC, and Helga Behroozi, Larry Dorfman, Rebecca Marcus, Jane Nolan and Robert Pinkley, individually, move, pursuant to FED. R. CIV. P. 12(b)(1) and (6) to dismiss the Plaintiffs' action on several different bases. The Defendants David Kingen, David Halvorson, Roll McLaughlin and Kipp Normand join in the motion to dismiss. Having considered the motion, the parties' arguments, and the applicable law, the court rules as follows.
This section of the entry addresses the allegations of the Amended Complaint and relevant procedural history. For additional factual background the reader should see the court's Entry Denying the Plaintiff's Application for Preliminary Injunction of July 2, 1999.
On January 28, 1999, the Plaintiff Linda Morrison Boczar commenced this action, and on February 25, 1999, she filed an Amended Complaint. James Boczar subsequently was added as a Plaintiff. Thus, the court will refer to "the Plaintiffs" in discussing the Amended Complaint.
The Amended Complaint alleges that the Plaintiffs own property located at 4821
North Meridian Street in Indianapolis, Indiana, and that the Defendants David Kingen,
Helga Behroozi, Larry Dorfman, David Halvorson, Rebecca Marcus, Jane Nolan, Robert Pinkley and John/Jane Doe (presumably Roll McLaughlin and Kipp Normand) are the members of the Meridian Street Preservation Commission (the "MSPC"), a public agency.
It is alleged that in January 1997 the MSPC issued a Certificate of Appropriateness to the Plaintiffs and that in September 1998 the Defendant City of Indianapolis (the "City") through its Department of Metropolitan Development issued to the Plaintiffs a Building Permit and an Improvement Location Permit. The Plaintiffs then undertook reconstruction work on their property.
It is claimed that the MSPC discussed and took action regarding the Plaintiffs' property at its November 1998 meeting. Employees, agents, and/or officials of the City were present at the meeting and participated in the discussion of and action regarding the Plaintiffs' property. The Plaintiffs had no notice that their property would be discussed and the matter was not on the agenda for the MSPC's meeting. As a result of the MSPC's November meeting, the City issued a letter which revoked the permits and a stop-work order to the Plaintiffs. Reconstruction work on the Plaintiffs' property was discontinued.
The Amended Complaint contains eight counts. It asserts that: (1) the decisions of the MSPC and its members are unconstitutionally vague, arbitrary and ambiguous under the United States Constitution; (2) the acts and omissions of the MSPC and its members violated the Indiana Open Door Law; (3) the Defendants City, Lausch and Fields lacked authority to revoke the permits and issue the stop-work orders; (4) the Defendants violated the Plaintiffs' Fifth Amendment due process rights; (5) the Defendants violated the Plaintiffs' Fourteenth Amendment due process rights; (6) the Defendants violated the Plaintiffs' due process rights protected by the Indiana Constitution; and (7) the Plaintiffs' property was subject to an unlawful taking without just compensation by the Defendant City,
Lausch and Fields' actions. In Count VIII, the Plaintiffs seek a declaration of their rights.
They also seek compensatory and punitive damages, attorney's fees, and costs and expenses.
On April 26, 1999, the MSPC, David Kingen, Helga Behroozi, Larry Dorfman, David Halvorson, Rebecca Marcus, Jane Nolan and Robert Pinkley, in their official capacities as members of the MSPC, and Ms. Behroozi, Mr. Dorfman, Ms. Marcus, Ms. Nolan and Mr. Pinkley, individually, moved, pursuant to FED. R. CIV. P. 12(b)(1) and (6) to dismiss the Plaintiffs' action against them on several grounds. The Defendants David Kingen, David Halvorson, Roll McLaughlin and Kipp Normand joined in the motion to dismiss. The Plaintiffs oppose the motion.
In May 1999, the Plaintiffs sought a preliminary injunction, to require the Defendant City through its Department of Metropolitan Development and Defendants Gene R. Lausch and Rhonda J. Fields to rescind the revocation of permits issued to them on or about September 2, 1998, and to rescind or withdraw the stop-work orders regarding certain construction, renovation and/or remodeling work on their residential property. Following a hearing, the Plaintiffs' motion for a preliminary injunction was denied by the court.
II. Dismissal Standard
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of any action over which the court lacks subject matter jurisdiction. FED. R. CIV. P. 12(b)(1).
Rule 12(b)(6) provides for the dismissal "for failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). A claim may be dismissed pursuant to FED. R. CIV. P. 12(b)(6) only if it is beyond doubt that there are no set of facts under which the complaint's allegations would entitle the plaintiff to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In deciding whether to grant a motion to dismiss, the court must accept the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Vickery v. Jones, 100 F.3d 1334, 1341 (7th Cir. 1996), cert. denied, 520 U.S. 1197 (1997).
III. Discussion
The Moving Defendants contend that the Plaintiffs' action against them should be dismissed on the following bases: (1) this action implicates and interferes with an ongoing state quasi-judicial proceeding such that the court should abstain from hearing this action; (2) the Eleventh Amendment of the United States Constitution bars this action as to the MSPC and its members in their official capacities; (3) the MSPC and its members in their official capacities are not "persons" for purposes of 42 U.S.C. § 1983 and cannot be sued under that statute; (4) a claim under § 1983 cannot be based on a violation of state statute and the only statutory violation alleged by the Plaintiffs as to the MSPC or its members is a violation of the Indiana Open Door Act; (5) the commissioners, in their individual capacities, are entitled to absolute judicial immunity as to any claims based on decisions as to the issuance, revocation or modification of a Certificate of Appropriateness; (6) the Plaintiffs have not linked their alleged injuries to the conduct of the MSPC and its members and, therefore, lack standing to pursue claims against them; and (7) the Plaintiffs have failed to allege facts sufficient to support a Fifth Amendment claim against the MSPC or its members.
A. Abstention
The Moving Defendants contend that the court should abstain under the doctrine of Younger v. Harris, 401 U.S. 37 (1971), and its progeny. Younger held that absent extraordinary circumstances federal courts should abstain from enjoining state criminal proceedings. The Younger abstention doctrine has been expanded to state administrative proceedings that are judicial in nature. See Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619 (1986) (sex discrimination proceeding before state civil rights commission); Middlesex County Ethics Comm'n, 457 U.S. 423 (1982) (lawyer disciplinary proceeding initiated by state ethics committee); Trust Investment Advisers, Inc. v. Hogsett ("TIA"), 43 F.3d 290, 294-95 (7th Cir. 1994) (proceeding by state securities division to revoke investment advisor's license).
A three-part test has been established to determine whether Younger abstention is required: The state proceeding must (1) be ongoing and judicial in nature, (2) implicate important state interests, and (3) afford an adequate opportunity to raise constitutional claims. See Middlesex County Ethics Comm'n, 457 U.S. at 431-32; Crenshaw v. Supreme Court of Indiana, 170 F.3d 725, 727 (7th Cir. 1999); Majors v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998). "`When confronted with circumstances that clearly implicate Younger concerns, a federal court must abstain.'" Crenshaw, 170 F.3d at 730 (quoting Barichello v. McDonald, 98 F.3d 948, 955 (7th Cir. 1996)). A court should abstain in only exceptional circumstances. See, e.g., New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 368 (1989) ("NOPSI"); Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976).
The Plaintiffs argue that there are four rather than three factors to be considered under the Younger abstention doctrine. The "fourth factor" is "extraordinary circumstances" or bad faith exception to the abstention rule. See Crenshaw, 170 F.3d at 729. Though the court does not treat this as a "factor" under the Younger and Middlesex test, the court does consider whether the exception applies in this case.
A state administrative proceeding is "judicial in nature" when it is coercive, that is, when it is an enforcement proceeding, rather than a remedial or legislative proceeding. See Majors, 149 F.3d at 712. As the Supreme Court explained, "`[a] judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.'" NOPSI, 491 U.S. at 370 (quotation omitted). The Plaintiffs state that whether the MSPC's proceedings are judicial in nature depends on whether they are enforcement proceedings or remedial in nature. The Plaintiffs acknowledge that the MSPC's proceedings are "probably a little of each. . . ." (See Mem. in Support of Pls.' Mot. in Opp'n to Mot. to Dismiss at 4-5.) They then make the conclusory allegation that the MSPC transposes "much of what it does into remedial" proceedings. (Id. at 5.) They have not supported this allegation with reference to any specific facts in this case. Nor have they argued that the MSPC's proceedings with respect to their application for a Certificate of Appropriateness are wholly remedial in nature.
The court finds that the MSPC's proceedings regarding Certificates of Appropriateness are of a judicial nature. Pursuant to the Meridian Street Preservation Act (the "MSPA"), Indiana Code §§ 36-7-11.2-1 through 36-7-11.2-67, the MSPC is created and vested with the authority to issue Certificates of Appropriateness required for the construction, reconstruction or alteration of property subject to the MSPA. IND. CODE §§ 36-7-11.2-18, 36-7-11.2-61. In deciding whether to issue a Certificate of Appropriateness, the MSPC may receive evidence at a public hearing from the petitioner seeking the certificate and from adverse persons. IND. CODE §§ 36-7-11.2-34, 36-7-11.2-61(d)(1); see also IND. CODE § 36-7-11.2-61(a)(1) (requiring the filing of an application for a certificate of appropriateness with the plans, specifications and other materials required by the MSPC). Thus, the MSPC undertakes an investigation into the petitioner's proposed plans for construction, reconstruction or alteration of property subject to the MSPA.
In addition, in deciding whether to issue a Certificate of Appropriateness, the MSPC is charged with determining whether the proposed construction, reconstruction or alteration:
(1) Will be appropriate to the preservation of the area comprised of Meridian Street and bordering property; and
(2) Complies with the architectural and construction standards then existing in the area.
IND. CODE § 36-7-11.2-61(b). Thus, the MSPC makes a judicial type inquiry, based on the petitioner's application and other materials presented, about whether the plans are appropriate for the area and in compliance with architectural and construction standards. Additional support for the conclusion that the MSPC's proceedings respecting Certificates of Appropriateness are judicial in nature is found in the MSPA's provision for appeals from the MSPC's decision to state courts. IND. CODE § 36-7-11.2-64(a) (making the issuance of or refusal to issue a certificate of appropriateness a final determination of the MSPC appealable to the circuit or superior courts of Marion County); see also IND. CODE § 36-7-11.2-65 (providing that an appeal may be taken to the Indiana Court of Appeals from the final judgment of the circuit or superior court).
Having decided that the MSPC's proceedings are judicial in nature, the court must determine whether any such proceedings are ongoing with respect to the Boczars' property. In their motion to dismiss, the Moving Defendants contend that the proceedings are ongoing because the Boczars "presently ha[ve] a petition pending with the [MSPC] to modify [the] existing certificate." (Mem. in Support of State's Mot. to Dismiss at 5.) Indeed, when the Moving Defendants' motion was filed — on April 26, 1999 — pending before the MSPC was the Plaintiffs' petition for an Amendment to the Certificate of Appropriateness that was issued in January 1997. However, based on the Plaintiffs' allegations in another case filed in this court, Boczar v. Behroozi, IP99-1139-C-B/S, of which the court takes judicial notice, the Plaintiffs' petition for Amendment was denied by the MSPC on May 25, 1999. (See Boczar v. Behroozi, IP99-1139-C-B/S, Compl. ¶¶ 19-43, 96.) Thus, the proceedings before the MSPC regarding the Plaintiffs' petition for an Amendment to their Certificate of Appropriateness have come to a close.
The Plaintiffs contend that in deciding whether there is an ongoing state proceeding, the court should separately consider the building permits and the Certificate of Appropriateness. (See Mem. in Support of Pls.' Mot. in Opp'n to Mot. to Dismiss at 3.) Because the City rather than the MSPC revoked the building permits and the Plaintiffs have not alleged that the Moving Defendants had any role in that revocation and because the MSPC and its members, not the City, move to dismiss the Plaintiff's action, the court focuses solely on the MSPC's proceedings and the Certificate of Appropriateness.
In addition, at the preliminary injunction hearing in this action held on May 26, 1999, Robert A. Pinkley, a member of the MSPC and defendant, testified that the MSPC had taken the Boczars' petition for an amendment to their Certificate under consideration at the May 1999 meeting but had declined to grant the amendment.
It could be argued, however, that the state proceedings nevertheless are ongoing because the Plaintiffs can appeal the MSPC's final decision regarding the Amendment in state court. The Supreme Court has said that "a necessary concomitant of Younger is that a party . . . must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself within one of the exceptions specified in Younger." Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975); see also id. at 611 n. 22 (noting that Younger may not be avoided by the failure to take an appeal when one is available). In Huffman, the plaintiff failed to appeal a state trial court judgment against it. This case, however, does not involve the failure to appeal a state court judgment but the failure to seek state court judicial review of a final determination from a state administrative proceeding.
The court has found no controlling authority holding that Huffman's principle of exhaustion applies equally when the state court proceeding at issue is an administrative proceeding and the plaintiffs failed to initiate state court review of that proceeding. NOPSI assumed, without deciding, that the principle applied in such a case. See NOPSI, 491 U.S. at 369. And, though Majors concluded that the distinction between the state court proceedings in Huffman and the administrative proceedings in that case was "a distinction without a difference," see Majors, 149 F.3d at 713, the plaintiff in Majors already had initiated state court review. Thus, in Majors federal intervention would have interfered with a pending state court proceeding. The court declines to conclude that the MSPC's proceedings with respect to the Boczars' petition for an Amendment to their Certificate of Appropriateness are ongoing without clear authority to do so. For this reason, abstention under Younger would be inappropriate.
The court agrees, however, that the second and third Younger abstention factors are satisfied in this case. The MSPC's proceedings implicate important state interests as set forth in the MSPA. See IND. CODE § 36-7-11.2-1(a), (b). As to the third factor, subsequent judicial review provides an adequate opportunity to review constitutional claims. See Dayton Christian Schs., Inc., 477 U.S. at 629; Majors, 149 F.3d at 713. The Plaintiffs acknowledge that they have an adequate opportunity on appeal to raise constitutional claims. (See Mem. in Support of Pls.' Mot. in Opp'n to Mot. to Dismiss at 5.)
Even if Younger abstention would otherwise be appropriate, the court would decline to abstain because Younger's extraordinary exception applies in this case. If the state tribunal is biased or has prejudged the controversy, extraordinary circumstances exist and abstention is inappropriate. See TIA, 43 F.3d at 295. To show that this exception applies, the Plaintiffs "must allege specific facts to support [their] inferences of bad faith, bias, and retaliation. [They] must present more than mere allegations and conclusions." Crenshaw, 170 F.3d at 729; see also TIA, 43 F.3d at 297. The availability of state judicial review of a state proceeding is insufficient to render abstention appropriate when it would otherwise be inappropriate because of a biased tribunal. See TIA, 43 F.3d at 296-97.
The Plaintiffs have pointed to specific facts to support their allegations that the MSPC is biased against them. On January 5, 1999, Dave Kingen, Chairman of the MSPC, removed himself from participation in the hearing regarding their application for an amendment to their certificate of appropriateness "to insure a fair and objective public hearing." In a memorandum addressed to the MSPC members, Chairman Kingen stated that he hoped "personalities and past differences can be set aside and this [the Boczars'] case be heard and evaluated by each of you based on the merits of this petition." In addition, there is evidence that the MSPC members discussed the Boczars' property and reconstruction efforts during an official meeting although the matter was not on the meeting's agenda and without notice to the Boczars or the public. Though this does not necessarily evince bias, it could suggest that the MSPC was not interested in hearing from the Boczars before making its decision with respect to their property and their request for an amendment or alteration to their Certificate of Appropriateness.
B. Eleventh Amendment
The Moving Defendants contend that the Eleventh Amendment bars this action against the MSPC and its members in their official capacities. The Plaintiffs do not address this contention in their response brief, which the court deems a concession that the Eleventh Amendment applies. The question remains, however, as to the extent of the Eleventh Amendment bar.
The Eleventh Amendment bars a suit in federal court against a State, its agencies, or state officials in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 (1985); Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984); Marie O. v. Edgar, 131 F.3d 610, 615 (1997). There are three exceptions to this bar. See Marie O., 131 F.3d at 615. First, a state may be sued if Congress has abrogated the state's immunity. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996); Marie O., 131 F.3d at 615. Second, a state may be sued if it waives its immunity and consents to suit in federal court. See id. Lastly, suits against state officials seeking prospective equitable relief for ongoing or threatened violations of federal law are not barred by the Eleventh Amendment. See, e.g., Seminole Tribe, 517 U.S. 44, 73 (1996); Ex Parte Young, 209 U.S. 123, 159-60 (1908); Marie O., 131 F.3d at 615.
The State of Indiana has not consented to this suit and Congress did not abrogate Eleventh Amendment immunity for suits under 42 U.S.C. § 1983. See, e.g., Moore v. State of Indiana, 999 F.2d 1128-29 (7th Cir. 1993). The MSPC is a state agency created by Indiana Code § 36-7-11-2 and its members are state officials. Therefore, the Eleventh Amendment bars all federal claims (both equitable and damages) against the MSPC and bars the federal damages claims against its members in their official capacities. The federal claims for prospective equitable relief against the MSPC members in their official capacities are barred by the Eleventh Amendment as well because this action does not allege any "ongoing or threatened" violation of federal law. Instead, the Plaintiffs allege past violations of federal law.
The Eleventh Amendment also bars pendent state-law claims against a State, its agencies, or state officials in their official capacities. See, e.g., Pennhurst, 465 U.S. at 118, 121 ("[N]either pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment."); Oneida County, N.Y. v. Oneida Indian Nation of New York State, 470 U.S. 226, 251 (1985) (holding that state law claim against the state was barred by Eleventh Amendment); Allen v. Cuomo, 100 F.3d 253, 260 (2nd Cir. 1996); Mascheroni v. Board of Regents of Univ. of Calif., 28 F.3d 1554, 1559-60 (10th Cir. 1994) (holding Eleventh Amendment barred state law claims against Board of Regents); Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 528 (7th Cir. 1988) (recognizing that "under Pennhurst the district court may not use (its view of) state law as the basis of an injunction against state officials who hold a different interpretation of state law."). There is no "greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law." Pennhurst, 465 U.S. at 106. Under this authority, all state-law claims (damages and equitable) against either the MSPC or its members in their official capacities should be dismissed as barred by the Eleventh Amendment.
To summarize, all claims (federal and state law; equitable and damages) against the MSPC and all claims (federal and state law; equitable and damages) against its members in their official capacities should be dismissed for want of jurisdiction. These claims are asserted in Count I (asserting decisions of MSPC are unconstitutionally vague, arbitrary and capricious), Count II (violation of Indiana Open Door Law), Count IV ( Fifth Amendment due process claim), V ( Fourteenth Amendment due process claim) VI (due process claim under Indiana Constitution), VIII (seeking declaration of Plaintiffs' rights under state statute or ordinance). The Eleventh Amendment does not, however, bar any of the claims against the MSPC's members individually.
Counts III and VII do not assert any claims against either the MSPC or its members.
C. "Persons" Under § 1983
The Defendants correctly assert, and the Plaintiffs agree, that states, state entities and state officials sued in their official capacities are not considered "persons" under 42 U.S.C. § 1983, see Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989). The Plaintiffs further agree that, therefore, the federal claims against the MSPC and the federal claims against the MSPC members in their official capacities should be dismissed. These claims are asserted in Counts I, IV, V and VIII.
The Moving Defendants also contend that, to the extent the Plaintiffs' attempt to bootstrap the claimed violation of Indiana's Open Door Law, Indiana Code § 5-14-1.5-1 et seq., as a claim under § 1983, that claim should be dismissed. The Plaintiffs assert that they do not base their § 1983 claim upon a violation of state law but upon a violation of their constitutional rights to due process. Thus, this contention provides no basis for dismissal of the § 1983 claims.
D. Absolute Immunity
The Moving Defendants argue that the members of the MSPC are entitled to absolute judicial immunity (which the court interprets as absolute quasi-judicial immunity) from the Plaintiffs' claims against them individually. They claim that the members of the MSPC act in a judicial capacity in issuing, modifying or revoking a Certificate of Appropriateness. The Plaintiffs have not responded to the Moving Defendants' argument regarding absolute quasi-judicial immunity, which the court deems a concession that such immunity applies. The question remains, however, as to which claims are barred by quasi-judicial immunity.
As a general rule, a judge is immune from a suit for money damages. See Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam). This doctrine has been held applicable in § 1983 damages actions. See Stump v. Sparkman, 435 U.S. 349, 355 (1978). Judicial immunity, however, is no bar to a claim for equitable relief. See Pulliam v. Allen, 466 U.S. 522, 541-42 (1984); Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir. 1989).
A judge is not immune for nonjudicial actions, that is, actions not taken in the judicial capacity. See Forrester v. White, 484 U.S. 219, 227-29 (1988). Nor is a judge immune for judicial actions taken with a complete lack of jurisdiction. See Stump, 435 U.S. at 356-57. Neither of these exceptions would apply in this action as against the MSPC members.
The doctrine of judicial immunity has been extended to administrative officials whose function is quasi-judicial. See Butz v. Economou, 438 U.S. 478, 507 (1978). Whether administrative officials are entitled to absolute immunity from suit for damages is determined on the basis of a functional approach. See Walrath v. United States, 35 F.3d 277, 280-81 (7th Cir. 1994); Sellars v. Procunier, 641 F.2d 1295, 1302-03 (9th Cir. 1981). Under this approach, an official whose responsibilities are "functionally comparable" or "closely analogous" to the adjudicative functions of a judge is entitled to absolute immunity from suit for acts arising out of such responsibilities. See Butz v. Economou, 438 U.S. 478, 513-14 (1978); Walrath, 35 F.3d at 281. Absolute immunity is extended to such officials "in order to protect their decisionmaking function from being impeded by fear of litigation or personal monetary liability." Crenshaw v. Baynerd, No. 98-3156, ___ F.3d ___, 1999 WL 384174, at *2 (7th Cir. June 14, 1999). The party claiming immunity bears the burden of demonstrating his or her entitlement to it. See Butz, 438 U.S. at 506.
In Crenshaw the Seventh Circuit determined that the members of the Indiana Civil Rights Commission (the "ICRC") performed duties functionally comparable to those adjudicative duties of a judge, relying in part on their duties prescribed under administrative and statutory law. See Crenshaw, 1999 WL 384174, at *2 (citing IND. ADMIN. CODE tit. 910, r. 1-2-1, and IND. CODE § 22-9-1-6(i)). Under § 22-9-1-6(i), the ICRC is granted the authority to perform such adjudicative functions as "hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and require the production for examination of any books and papers relating to any matter under investigation or in question before the commission." See also Stanley v. Indiana Civil Rights Comm'n, 557 F. Supp. 330, 334 (N.D.Ind. 1983). The ICRC is required to make findings of fact after a hearing and issue orders, may award a complainant for its lost wages, salary or commissions and require compliance with its orders. See IND. CODE § 22-9-1-6(k). In Stanley, the court concluded, "[t]hese powers support the conclusion that the members of the [ICRC] are performing functions comparable to those performed by judges." Stanley, 557 F. Supp. at 334; see also Crenshaw, 1999 WL 384174, at *2. The court notes that judicial appellate review is available of the ICRC's orders and actions. See IND. CODE § 22-9-1-6(l).
In issuing the January 1997 Certificate of Appropriateness to the Boczars and in deciding to and denying the Boczars' petition for an Amendment to that Certificate, the members of the MSPC acted in a functionally adjudicatory capacity. The MSPC is required to consider all applications for a Certificate of Appropriateness, and in its discretion, may conduct a hearing respecting any application, unless a hearing is requested in which case one must be held. IND. ADMIN. CODE tit. 925, r. 1-1-18. A party may appear in person or by agent or attorney at the hearing during which the MSPC may hear testimony of witnesses under oath or affirmation and subject to cross examination. IND. ADMIN. CODE tit. 925, r. 1-1-6, 1-1-11. Both petitioners and adverse parties have the opportunity to present testimony, other evidence, and argument to the MSPC. IND. ADMIN. CODE tit. 925, r. 1-1-8. In addition, the MSPC may require a petitioner or adverse person to file with the MSPC certain materials prior to a hearing, and may require certain materials be submitted with an application for a Certificate of Appropriateness. IND. CODE § 36-7-11.2-34; IND. ADMIN. CODE tit. 925, r. 1-1-16. After finally determining a matter, the MSPC is required to enter a written final order, stating the basic facts as found in determining the matter. IND. CODE §§ 36-7-11.2-38, -45. The MSPC's final determination with respect to a Certificate of Appropriateness is subject to judicial review in the circuit or superior courts of Marion County. IND. CODE § 36-7-11.2-64(a).
The powers and duties of the MSPC members, which are similar to those of the members of the ICRC, are functionally comparable to those performed by judges. See also Reed v. Village of Shorewood, 704 F.2d 943, 951-52 (7th Cir. 1983) (holding liquor control commissioner acted in judicial capacity and was entitled to absolute immunity when deciding whether to renew or revoke licenses); Akins v. Deptford Tp., 813 F. Supp. 1098, 1102-03 (D.N.J. 1993) (holding chairman of county construction board of appeals was entitled to absolute quasi-judicial immunity). Because the MSPC members act in a quasi-judicial capacity with respect to issuing, modifying, or refusing to issue Certificates of Appropriateness and amendments thereto, they are entitled to absolute quasi-judicial immunity against the Plaintiffs' federal damages claims against them in their individual capacities. Therefore, the federal damages claims against the MSPC members individually should be dismissed. Said claims are asserted in Count I (claiming decisions of MSPC are unconstitutionally vague, arbitrary and capricious), Count IV ( Fifth Amendment due process claim) and Count V ( Fourteenth Amendment due process claim).
In addition, the MSPC's members are appointed by either the mayor of the City or the governor, IND. CODE § 36-7-11.2-20, -21, -22; and, like a judicial officer, a member may be disqualified from hearing and voting upon a matter under certain circumstances which would suggest that member had an interest or bias in the matter. IND. CODE § 36-7-11.2-36.
The federal claims for equitable relief against the MSPC members individually and the state law claims against them individually remain. These state law claims are asserted in Count II (violation of Indiana Open Door Law), VI (due process claim under Indiana Constitution) and VIII (seeking declaration of Plaintiffs' rights under state statute or ordinance).
The court does not understand the Moving Defendants to be asserting quasi-judicial immunity from suit on the Plaintiffs' state law claims against the MSPC members individually. The members' entitlement to immunity as against the state law claims would appear to be a matter of state law and, at this time, the Defendants have cited no state authority to support a claim to such immunity.
E. Standing
The Movants contend that the Plaintiffs lack standing to bring this action against them because they have not alleged an injury-in-fact fairly traceable to any conduct of the movants. The judicial power of the federal courts is limited to the resolution of "cases" and "controversies". U.S. CONST. art. III, § 2; see Valley Forge Christian College v. Americans United for Separation of Church State, Inc., 454 U.S. 464, 471 (1982). Standing is one case and controversy requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The "irreducible constitutional minimum of standing" contains three requirements. See id. First, the plaintiff must have suffered an "injury in fact," which is "concrete and particularized" and "actual or imminent", not conjectural or hypothetical. See id. Second, the injury must be "fairly traceable" to the challenged conduct of the defendant, that is, there must be a causal connection between the injury and the defendant's conduct. See id. Third, it must be likely, rather than speculative, that the injury will be "redressed by a favorable decision" by the court. See id. 504 U.S. at 561. The Moving Defendants contend that the Plaintiffs have not alleged an injury in fact that is fairly traceable to any conduct of the MSPC or its members. The court disagrees.
It must be noted that the court doubts that the Moving Defendants actually are making an argument based on the lack of standing. Instead, it seems this argument is that in suing the MSPC and its members, the Plaintiffs sued parties which did not cause the harm alleged by the Plaintiffs. Nevertheless, the court addresses this argument as a standing argument.
Having reviewed the Amended Complaint, the court concludes that the Plaintiffs have alleged an injury-in-fact fairly traceable to the challenged conduct of the Moving Defendants. The Amended Complaint alleges that on or about November 17, 1998, the MSPC conducted a Special Meeting during which it discussed the Plaintiffs' property and took "official action" as defined in the Indiana Code § 5-14-1.5-2(a) regarding their property. (Am. Compl. ¶¶ 12, 14.) It also alleges that the discussion and action were taken even though the Plaintiffs' property was not on the agenda for the Special Meeting and the Plaintiffs had no notice that their property would be a subject at the meeting. (Id. ¶¶ 13, 14.) The Amended Complaint claims that the City's letter to the Plaintiffs which revoked the building permits previously granted was a product and result of the MSPC's discussion and official action taken at the MSPC's Special Meeting. (Id. ¶¶ 15-17, 19.) It is alleged that the actions of all the Defendants, thus including the MSPC and its members, adversely affected the Plaintiffs' liberty and property interests. (Id. ¶ 20.) In addition, the Amended Complaint alleges, inter alia, that all the Defendants, thus including the MSPC and its members, violated the Plaintiffs' due process rights under the Fourteenth Amendment and Indiana Constitution, (id. ¶¶ 48, 51), and that their conduct constituted an unlawful taking of the Plaintiffs' property without just compensation. (Id. ¶ 53.) Thus, the Amended Complaint alleges that the Plaintiffs suffered a distinct injury fairly traceable to the conduct of the MSPC and its members.
F. Fifth Amendment Claim
The Moving Defendants argue that the Plaintiffs have not made any allegations which would support a Fifth Amendment claim against them. This argument is not addressed by the Plaintiffs' response. The Fifth Amendment only applies to actions taken by the federal government, not state or local governments. See Bartkus v. Illinois, 359 U.S. 121, 158-59 (1959); U.S. ex rel. De Frates v. Ragen, 181 F.2d 1001, 1003 (7th Cir. 1950). Neither the MSPC nor its members are federal actors. Thus, the Plaintiffs have failed to state a claim under the Fifth Amendment against the Moving Defendants and these claims, that is, Count IV should be dismissed.
IV. Conclusion
For the foregoing reasons, the Defendants' motion to dismiss is GRANTED IN PART. The Eleventh Amendment bars all claims (federal and state law; equitable and damages) against the MSPC and all claims (federal and state law; equitable and damages) against the MSPC members in their official capacities. These claims, Counts I, II, IV, V, VI and VIII as against the MSPC and its members in their official capacities must be DISMISSED for want of jurisdiction.
The federal claims against the MSPC and the federal claims against its members in their official capacities (Counts I, IV, V and VIII as against the MSPC and its members in their official capacities) should be DISMISSED for the additional reason that these Defendants are not "persons" within the meaning of § 1983. In addition, the Fifth Amendment due process claims against the MSPC and its members, in their official capacities and individually (Count IV) should be DISMISSED for failure to state a claim.
Accordingly, the MSPC is DISMISSED as a defendant to this action and the MSPC members in their official capacities are DISMISSED as defendants to this action.
Further, the federal damages claims against the MSPC members individually are barred by quasi-judicial immunity. Therefore, Counts I, IV ( Fifth Amendment due process claim) and V ( Fourteenth Amendment due process claim) for damages as against the MSPC members individually are DISMISSED.
The federal claims for equitable relief against the MSPC members individually, with the exception of the Fifth Amendment claim (Count IV) which has been dismissed, still remain: Count I (asserting decisions of MSPC are unconstitutionally vague, arbitrary and capricious) and Count V ( Fourteenth Amendment due process claim). Also remaining are the state law claims (damages and equitable) against the MSPC members individually: Count II (violation of Indiana Open Door Law), Count VI (due process claim under Indiana Constitution) and Count VIII (seeking a declaration of Plaintiffs' rights under state statute or ordinance).
Because this entry does not dispose of all claims against all parties, no final judgment will be entered at this time. Entry of final judgment awaits disposition of the remaining claims.