Hill v. Town of Conway

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 99-1019



                ARLISS J. HILL, VERONA A. JOHNSON,

        TRUSTEE WILLIAM A. JOHNSON REVOCABLE LIVING TRUST

           AND CAROL J. HENNUM, TRUSTEE CAROL J. HENNUM

       LIVING TRUST d/b/a MOUNTAIN VALLEY MALL ASSOCIATES,

                     Plaintiffs, Appellants,



                                v.



                         TOWN OF CONWAY,

                       Defendant, Appellee.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE



          [Hon. Paul J. Barbadoro, U.S. District Judge]



                       ____________________



                              Before



                      Selya, Circuit Judge,



                  Coffin, Senior Circuit Judge,



                and Pollak, Senior District Judge.



                      _____________________



    Randall F. Cooper and Cooper, Deans & Cargill, P.A. on brief,

for appellants.

    Russell F. Hilliard, David P. Slawsky, and Upton, Sanders &

Smith on brief, for appellee.


____________________



                        October 4, 1999

                       ____________________         POLLAK, District Judge.  The question presented by this

appeal is whether the District Court for the District of New

Hampshire was correct in dismissing, for lack of subject matter

jurisdiction, a suit under 42 U.S.C.  1983, brought by plaintiffs,

as owners of the Mountain Valley Mall in North Conway, New

Hampshire, against the Town of Conway ("Town").  In their  1983

suit plaintiffs have alleged that the Town effectuated an

uncompensated -- and hence unconstitutional -- "taking" of Mountain

Valley Mall Boulevard, an access road connecting Mountain Valley

Mall to U.S. 302, a major highway.  After reviewing the procedural

history of the challenges to the Town's action mounted by the

plaintiffs prior to filing the  1983 suit, the district court

concluded that it lacked authority to entertain plaintiffs' suit. 

Specifically, the district court pointed out that before seeking

relief in federal court, plaintiffs had initiated two law suits in

the New Hampshire courts contesting the legality of the Town's

action and had been unsuccessful in both.  Viewing the  1983 suit

as an effort collaterally to undercut these state court decisions,

the district court held that the Rooker-Feldman doctrine --

pursuant to which "[l]ower federal courts are without subject

matter jurisdiction to sit in direct review of state court

decisions," Wang v. New Hampshire Board of Registration in

Medicine, 55 F.3d 698, 703 (1st Cir. 1995) -- 


deprived it of jurisdiction to entertain plaintiffs' suit.

         On appeal, plaintiffs contend that the district court

misapplied Rooker-Feldman.  Concluding that the district court

reached the right result for the right reasons, we affirm.

                                I.

         The procedural events antecedent to the initiation of

this  1983 suit had their inception in the winter of 1992.  On

March 10, 1992, at the annual Town Meeting of the Town of Conway,

a resolution was adopted which, inter alia, declared certain roads,

including "a portion of Mountain Valley Blvd., to Route 302 to

become public roads pursuant to RSA 231:51 on final acceptance and

recording of dedication by the Selectmen."  On April 22, 1992, the

Board of Selectmen executed a Declaration of Taking reciting that

a portion of roadway including Mountain Valley Mall Boulevard was

"being taken for use as a town road under the authority of NHRSA

231:51" in order "to enhance traffic flow in the Town of Conway and

enhance public safety and the health and welfare of the Town."  On

May 8, 1992, the Declaration of Taking was filed with the New

Hampshire Board of Tax and Land Appeals.  On April 12, 1993, the

Board of Tax and Land Appeals ruled that plaintiffs were entitled

to "no damages as a result of the taking."

         Thereafter, plaintiffs filed two suits in the Carroll

County Superior Court.  The first suit -- a statutorily prescribed

mode of judicial review of the "no damages" ruling of the Board of

Tax and Land Appeals -- sought de novo reassessment of damages. 

The second suit challenged the legal efficacy of the Town of

Conway's Declaration of Taking of Mountain Valley Boulevard,

contending that there had been no dedication of the roadway and

that the Declaration of Taking had not adequately described the

roadway.

         Both suits were ruled on by Justice James D. O'Neill,

III, Presiding Justice of the Carroll County Superior Court. 

Justice O'Neill decided the second suit -- the suit challenging the

Declaration of Taking -- first.  On July 26, 1996, Justice O'Neill

ruled that the Declaration of Taking was in compliance with the

requirements of New Hampshire law.  On February 6, 1997, the New

Hampshire Supreme Court summarily affirmed, and on April 22, 1997,

the New Hampshire Supreme Court denied plaintiffs' motion for

reconsideration.

         On July 17, 1997, the Town of Conway moved for summary

judgment in the damages reassessment suit.  On September 23, 1997,

Justice O'Neill granted the Town's motion for summary judgment. 

Key to the court's analysis was what the court had decided in the

Declaration of Taking case which Justice O'Neill characterized as

"a separate case involving the same parties disputing ownership to

Mountain Valley Boulevard."  In that case, wrote Justice O'Neill:

                    The Court held in pertinent part that

         Mountain Valley Boulevard was dedicated by the

         plaintiffs and accepted by the defendant.  See

         Hill, et al. v. Town of Conway, 95-E-86, 66 at

         pp. 6, 13-15 (Carroll Cty. Super. Ct.

         7/26/96).  Specifically, the Court found that

         Mountain Valley Boulevard was platted as a

         road on a subdivision plan approved by the

         Conway Planning Board on August 16, 1990; said

         subdivision plan was recorded in the Carroll

         County Registry of Deeds; the Town accepted

         the platted road and easement on the

         subdivision plan by dedication; and the Town

         executed and recorded a dedication of Mountain

         Valley Boulevard as a public road.  Id. at 29

         (granting to [sic] the Town's requested

         Findings of Fact #3-7).  The Court specified

         that the plat plan in question constituted a

         subdivision within the meaning of RSA 672:14. 

         Order at 29 (granting Town's requested Finding

         of Fact #11, Ruling of Law #1).  The Court

         also ruled that by allowing the Town to

         perform winter road maintenance, the

         plaintiffs showed intent to dedicate Mountain

         Valley Boulevard to the Town of Conway.  Id.

         (Ruling of Law #7); see also Order at 6.



                    The Supreme Court summarily affirmed this

         Court's decision on February 6, 1997, then

         denied the plaintiffs' Motion to Reconsider on

         April 22, 1997.  The Court finds that the

         issue(s) disputed in this case is identical to

         that previously litigated by the parties.  The

         Court's previous ruling as to dedication and

         acceptance was of essential import to the

         first decision.  Additionally, the plaintiffs

         had a full and fair opportunity to litigate

         the issue in the prior action.  The issue was

         resolved finally on the merits.  Accordingly,

         the plaintiffs are collaterally estopped from

         relitigating the issue of dedication and

         acceptance in the present case.  See Aranson

         v. Schroeder, 140 N.H. 359, 368 (1995)

         (setting forth elements of collateral

         estoppel).



                     The plaintiffs['] remaining argument is

         that they are entitled to compensation because

         they did not intend to effectuate a

         dedication.  As referenced above, however, the

         court has found that the plaintiffs intended

         to dedicate Mountain Valley Boulevard. 

         Notwithstanding that finding, RSA 231:51 and

         the decision of Polizzo v. Town of Hampton,

         126 N.H. 398, 401 (1985), provide that roadway

         dedication can be accomplished by filing with

         a planning board a subdivision plan

         designating said roadway, and then selling

         lots in accordance with said plan.  The filing

         of such a subdivision plan exhibits the

         applicant's intent to dedicate.  See 4

         Anderson's American Law of Zoning  25.27, p.

         385 ("the filing of a subdivision plat showing

         streets usually is construed as an offer to

         dedicate the land marked for such purpose");

         Harrington v. Manchester, 76 N.H. 347, 349

         (1912).  It has been held that one who

         dedicates a roadway is "entitled to no more

         than nominal damages," Walker v. Manchester,

         58 N.H. 438 (1878); Harrington, 76 N.H. at 348

         (emphasis added), or "no more than the

         commissioners awarded."  Wilkins v.

         Manchester, 74 N.H. 275 (1907) (emphasis

         added).  In the present case, the Board of

         Land and Tax Appeals declined to award the

         plaintiffs damages; therefore, under the above

         principles, the plaintiffs are entitled to no

         further compensation.  The plaintiffs[']

         reliance on Dolan v. City of Tigard, 114

         S. Ct. 2309 (1994), is arguably misplaced.  In

         Dolan, the petitioner was required, pursuant

         to express conditions, to dedicate a public

         greenway and bicycle path in order to obtain

         approval of a store expansion.  No such

         conditions were demanded of the plaintiffs in

         this case; rather, a voluntary dedication and

         acceptance occurred.  Therefore, the

         plaintiffs are not entitled to damages under

         either the law of New Hampshire or the Dolan

         decision.



         On January 12, 1998, plaintiffs appealed to the Supreme

Court of New Hampshire, presenting these questions:

                     a.  Does the Fifth Amendment to the U.S.

         Constitution (applicable to New Hampshire

         through the Fourteenth Amendment), or the New

         Hampshire Constitution, Pt. 1, Art. 12,

         prohibit the taking of private roadway by a

         municipality's assertion of a dedication

         pursuant to N.H.R.S.A. 231:51, without just

         compensation?



                       b.  Does the Fifth Amendment to the U.S.

         Constitution (applicable to New Hampshire

         through the Fourteenth Amendment), or the New

         Hampshire Constitution, Pt. 1, Art. 12,

         prohibit the taking of private roadway by a

         municipality's assertion of a dedication

         pursuant to N.H.R.S.A. 231:51 where dedication

         results as a matter of law, and without a

         showing that the required dedication was

         related either in nature or extent of [sic]

         the impact of the Plaintiffs' proposed

         development on the public?



                       c.  Does R.S.A. 231:51 deprive a

         landowner of all property rights retained

         under common law after a dedication, without

         any consideration to just compensation?



         The Supreme Court of New Hampshire, on May 29, 1998,

ruled: "Notice of Appeal is declined.  See Rule 7(1)."

         Plaintiffs thereupon filed this  1983 suit.  In the

first amended complaint three causes of action were alleged, each

of them challenging the application of R.S.A. 231:51 as

effectuating "an unconstitutional deprivation of Plaintiffs'

private property without just compensation."  The first cause of

action -- denominated "Taking Without Just Compensation" --

contended that a dedication pursuant to R.S.A. 231:51 is a "taking"

and that an uncompensated "taking" is unconstitutional.  The second

cause of action -- denominated "Due Process -- Lack of Pre-taking

Determination" -- contended that the dedication process embodied in

R.S.A. 231:51 is constitutionally flawed because it does not call

for "an individualized determination hearing to establish that the

required dedication bears a rough proportionality to the impact of

the proposed development," a contention evidently intended to renew

plaintiffs' invocation in the Superior Court of Dolan v. City of

Tigard, 512 U.S. 374 (1994).  The third cause of action --

denominated "Due Process and Equal Protection of the Law -- Lack of

Post-taking Compensation Hearing and Appellate Review" --

challenged R.S.A. 231:51 as entailing a denial of "established

adjudicatory procedures, including both a hearing on the merits of

the de novo assessment hearing or a hearing before the N.H. Supreme

Court on appeal," with the result that "while a state remedy may

have been adequate in theory, it was not available in practice, and

by its unavailability denied the Plaintiffs equal protection of the

law, and thus constitutes a taking of the Plaintiffs' property by

the Town of Conway under color of law."

         By way of relief the plaintiffs sought "declaratory

relief that the post-deprivation process, including N.H. Supreme

Court Rule 7(1), as applied to the Plaintiffs' property violates

the Fourth, Fifth and Fourteenth Amendments to the United States

Constitution," and also "a Judgment for the Plaintiffs awarding an

amount of money damages that will fairly compensate said Plaintiffs

for the taking of their real property."

         The defendant Town of Conway moved to dismiss, invoking

the statute of limitations and res judicata.

         The district court, invoking Rooker-Feldman, dismissed

plaintiffs' suit for lack of subject-matter jurisdiction.  From

this judgment of dismissal plaintiffs have taken a timely appeal.

                               II.

         Plaintiffs, appellants in this court, contend that the

district court's dismissal on Rooker-Feldman grounds was erroneous

in two respects.

         First, appellants note that Feldman only forecloses

district court jurisdiction of claims that are "inextricably

intertwined" with the claims adjudicated in a state court. 

Feldman, 460 U.S. at 483 n.16, 486.  Appellants argue that "[n]one

of the three constitutional claims before the District Court could

possibly be considered to be inextricably interwoven with the

Superior Court decision" rejecting appellants' claim for

reassessment of damages -- i.e., appellants' claim for

"compensation" for the alleged "taking."  But appellants'

suggestion that the "issue actually addressed by the Superior Court

in the 'compensation' case was not directly the issue of the

constitutionality of the application of RSA 231:51" is hardly

persuasive given the fact that appellants relied on Dolan v. City

of Tigard, a "taking" case, before the Superior Court, and that

Justice O'Neill expressly addressed appellants' reliance on Dolan,

finding it "arguably misplaced" and concluding that "the plaintiffs

are not entitled to damages under either the law of New Hampshire

or the Dolan decision."

         Justice Marshall, concurring in Pennzoil Co. v. Texaco

Inc., 481 U.S. 1, 23, 25 (1987), provided important guidance to

courts determining whether issues are "inextricably intertwined":

                     As we have said, "[i]f the constitutional

         claims presented to a United States district

         court are inextricably intertwined" with the

         merits of a judgment rendered in state court,

         "then the district court is in essence being

         called upon to review the state-court

         decision.  This the district court may not

         do."  District of Columbia Court of Appeals v.

         Feldman, supra, at 483-484, n.16.  While the

         question whether a federal constitutional

         challenge is inextricably intertwined with the

         merits of a state-court judgment may sometimes

         be difficult to answer, it is apparent, as a

         first step, that the federal claim is

         inextricably intertwined with the state-court

         judgment if the federal claim succeeds only to

         the extent that the state court wrongly

         decided the issues before it.  Where federal

         relief can only be predicated upon a

         conviction that the state court was wrong, it

         is difficult to conceive the federal

         proceeding as, in substance, anything other

         than a prohibited appeal of the state-court

         judgment.



         The pertinence of Justice Marshall's analysis is made

plain in a recent Eighth Circuit opinion (an opinion quoted by the

district court in dismissing appellants' claims in the case at bar)

assessing the impact of Rooker-Feldman in the context of

condemnation litigation.  In Snider v. City of Excelsior Springs,

Missouri, 154 F.3d 809, 811-12 (1998), Judge Morris Arnold ruled as

follows:

                  Rooker-Feldman precludes a federal action if

         the relief requested in the federal action

         would effectively reverse the state court

         decision or void its holding.  Deciding

         whether Rooker-Feldman bars the plaintiffs'

         federal suit therefore requires that we

         determine what the state court held and

         whether the relief that the plaintiffs

         requested in their federal action would void

         the state court's decision or would require us

         to determine that the decision was wrong.



                              .....



                     The plaintiffs' complaint alleges that the

         defendants violated federal and state laws by

         their actions in the course of the

         condemnation proceeding.  They prayed for

         damages, attorneys' fees, and "to have their

         time share interests reinstated in the Elms

         Hotel and Resort."  The state court, however,

         had already determined the relevant damages

         from the condemnation and had extinguished

         whatever property interests the plaintiffs may

         have had.  For the federal district court to

         order condemnation damages or to reinstate

         property interests would require it to

         determine that the state court had decided the

         condemnation matter wrongly: In other words,

         the relief for which the plaintiffs prayed

         would, if granted, effectively void the state

         court's judgment.  Most importantly, the

         federal court would essentially be acting as

         an appeals court reviewing the state court

         judgment, which violates the Rooker-Feldman

         doctrine.



         Appellants, in the face of a Superior Court determination

that they "are not entitled to damages," have sought in their

 1983 suit a "Judgment . . . awarding an amount of damages that

will fairly compensate . . . for the taking of their real

property."  In short, as Judge Arnold put the matter, "the relief

for which the plaintiffs prayed would, if granted, effectively void

the state court's judgment."  As the district court properly

determined, Rooker-Feldman precludes such an adjudication.

         Appellants' second contention is captioned as follows: 

"The Decision by the N.H. Supreme Court to Decline the Appeal was

Not a Final Judgment, Judicial in Nature, Rendered by the Highest

State Court in which a Decision Could be Had."  The thrust of

appellants' argument is that "a declination of subject matter

jurisdiction under Rooker/Feldman is only applicable to a final

judgment or decree of the N.H. Supreme Court," and that "[t]he

declination by the N.H. Supreme Court under its Rule 7 was not such

a final judgment" reviewable by the United States Supreme Court

under 28 U.S.C.  1257.

         Appellants are correct in arguing that the New Hampshire

Supreme Court's Rule 7(1) disposition was not a judgment or decree

reviewable by the United States Supreme Court.  But appellants are

not correct in arguing that, within the New Hampshire judicial

framework, Rooker-Feldman applies only to judgments of the New

Hampshire Supreme Court, "the sole appellate court in the State of

New Hampshire having jurisdiction over all courts of inferior

jurisdiction."  Rooker-Feldman is keyed to  1257, and  1257

contemplates United States Supreme Court review on certiorari of

"[f]inal judgments or decrees rendered by the highest court of a

State in which a decision could be had" (emphasis added).  When a

state supreme court exercises its discretion (whether vested by

statute or rule) to decline to review a judgment of a lower state

court, the judgment of that lower state court is then reviewable by

the United States Supreme Court on certiorari pursuant to  1257. 

See, e.g., Abernathy v. Alabama, 380 U.S. 447 (1965)(certiorari to

the Court of Appeals of Alabama).  Moreover, in the unusual

situation in which no appellate court has jurisdiction to review

the trial court's judgment, the writ of certiorari of the United

States Supreme Court runs to that trial court.  See, e.g., Thompson

v. City of Louisville, 362 U.S. 199, 202-03 (1960) (certiorari to

the Police Court of Louisville, Kentucky).  In harmony with this

settled practice under  1257, "the Rooker-Feldman doctrine

precludes review of lower state court decisions, just as it

precludes review of the decisions of a state's highest court." 

Port Authority PBA v. Port Authority of New York and New Jersey,

973 F.2d 169, 178 (3d Cir. 1992); see also FOCUS v. Allegheny Court

of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996); cf. Keene Corp.

v. Cass, 908 F.2d 293, 297 (8th Cir. 1990); Worldwide Church of God

v. McNair, 805 F.2d 888, 893 n.3 (9th Cir. 1986); Hale v. Harney,

786 F.2d 688, 691 (5th Cir. 1986).

         In short, following the New Hampshire Supreme Court's

Rule 7(1) discretionary declination to accept appellants' appeal

from the Superior Court's ruling that "plaintiffs are not entitled

to damages under the law of New Hampshire or the Dolan decision,"

appellants could have petitioned the United States Supreme Court

for a writ of certiorari to the Superior Court, placing in issue

the Superior Court's rejection of appellants' Dolan-based federal

claim.  But appellants did not pursue that course.  Since the

United States Supreme Court had exclusive appellate jurisdiction to

review the final judgment of the Superior Court -- "the highest

court of [New Hampshire] in which a decision could be had" --

Rooker-Feldman instructs that no federal court other than the

United States Supreme Court had jurisdiction to entertain

appellants' federal claim.

                               III.

         "Although [28 U.S.C.]  1331 and  1343(3) appear to

create federal court subject-matter jurisdiction for all  1983

cases, there are a few situations where jurisdiction does not

exist.  The most important exception is that federal courts do not

have jurisdiction pursuant to  1983 to review the judgments and

decisions of state courts."  Erwin Chemerinsky, Federal

Jurisdiction 423 (2d ed. 1994).

         The judgment of the district court is affirmed.