Kerns v. Dukes

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

7-24-1998

Kerns v. Dukes

Precedential or Non-Precedential:

Docket 96-7751

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Recommended Citation

"Kerns v. Dukes" (1998). 1998 Decisions. Paper 172.

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Filed July 24, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-7751

JOSEPH KERNS; KATHLEEN KERNS; WILLIAM M.

TORNEY; LOIS A. TORNEY; MAUREEN MOYER; JOHN D.

COFFMAN; MARTHA C. COFFMAN, on behalf of

themselves and other similarly situated property owners,

9 Del.C. 6519 persons and other persons being assessed

for the payment of the "West Rehoboth Expansion of the

Dewey Beach Sanitary Sewer District

v.

DALE R. DUKES, individually and as Sussex County

Government President and Council President; GEORGE J.

COLLINS, individually and as Sussex County Council

Member; WILLIAM D. STEVENSON, SR., individually an d

as Sussex County Council Member; GEORGE B. COLE,

individually and as Sussex County Council Member;

RALPH E. BENSON, individually and as Sussex County

Council Member; ROBERT L. STICKELS, individually a nd

as Sussex County Administrator; ROBERT W. WOOD,

individually and as Sussex County Engineer;

CHRISTOPHE A.G. TULOU, individually and as Delawar e

Department of Natural Resources and Environmental

Control Secretary; GERALD L. ESPOSITO, individuall y

and as a Director of Delaware Department of Natural

Resources and Environmental Control; EDWIN H. CLAR K,

individually and as then Secretary of Delaware

Department of Natural Resources and

Environmental Control

Joseph Kerns and Kathleen Kerns, William M.

Torney and Lois A. Torney, Maureen Moyer,

John D. Coffman and Martha C. Coffman,

individually and as representative Plaintiffs on

behalf of the certified class,

Appellants

On Appeal From the United States District Court

for the District of Delaware

(D.C. Civ. No. 96-113)

Argued May 21, 1997

Before: SLOVITER and ROTH, Circuit Judges, and

POLLAK, District Judge*

(Filed July 24, 1998)

Francis J. Trzuskowski

James F. Kipp

Francis J. Schanne (argued)

Trzuskowski, Kipp, Kelleher &

Pearce

1020 North Bancroft Parkway

Box 429

Wilmington, DE 19899

Attorneys for Appellants

Carl Schnee (argued)

Prickett, Jones, Elliott, Kristol &

Schnee

1310 King Street

P.O. Box 1328

Wilmington, DE 19899

Dennis L. Schrader

Veronica O. Faust

107 West Market Street

P.O. Box 690

Georgetown, DE 19947

Attorneys for Appellees

Dale Dukes, George J. Collins,

William D. Stevenson, George Cole,

Ralph E. Benson, Robert L.

Stickels, Robert W. Wood

_________________________________________________________________

* Hon. Louis H. Pollak, United States District Judge for the Eastern

District of Pennsylvania, sitting by designation.

2

Keith A. Trostle

Department of Justice

820 North French Street, 8th Floor

Wilmington, DE 19801

Attorney for Appellee

Christophe A. Tulou

Kevin P. Maloney

Department of Natural Resources

89 Kings Highway

P.O. Box 1401

Dover, DE 19903

Attorney for Appellee

Gerald L. Esposito

David L. Ormond, Jr.

Department of Justice

820 North French Street, 8th Floor

Wilmington, DE 19801

Attorney for Appellee

Edwin H. Clark

OPINION OF THE COURT

POLLAK, District Judge:

This appeal presents the question whether a suit in the

District Court for the District of Delaware brought by

certain Delaware property owners challenging assessments

charged to them to provide for an expanded sewer system

is barred either by the Tax Injunction Act, 28 U.S.C. S 1341

-- which provides that "[t]he district courts shall not enjoin,

suspend or restrain the assessment, levy or collection of

any tax under State law where a plain, speedy and efficient

remedy may be had in the courts of such State"-- or by

principles of comity. Because we find that the district court

properly dismissed the suit, we affirm the judgment of the

district court.

I.

This civil action challenges decisions taken by the

defendants -- members and officials of the Sussex County

3

Council ("the County defendants"), and officials of the

Delaware Department of Natural Resources and

Environmental Control ("the DNREC defendants")-- to (1)

authorize the establishment of the "West Rehoboth

Expansion of the Dewey Beach Sanitary Sewer District" and

(2) take subsequent steps to implement such authorization.

The plaintiffs -- appellants in this court -- are several

persons owning real property in the expanded sewer district

("the Property Owners"). The Property Owners allege that,

by virtue of the establishment of the expanded sewer

district, they are being compelled to discontinue reliance on

their own septic systems and, in lieu thereof, to join the

expanded sewer system and to pay an array of service

charges and fees for the privilege of obligatory participation

in the expanded sewer system.

The complaint sets forth three counts arising under

federal law. The first count, based upon 42 U.S.C. S 1983,

alleges deprivations by the County defendants of the

Property Owners' Fourteenth Amendment rights to

procedural due process; this count undergirds the Property

Owners' most strongly argued claim -- namely, that under

Delaware law the establishment of the expanded sewer

district could be legally accomplished only pursuant to a

vote (an "election") of the affected Property Owners, a

procedural step not taken in this instance. The second

count, also based upon 42 U.S.C. S 1983, alleges that the

actions of the County defendants and the DNREC

defendants have infringed upon the Property Owners'

Fourteenth Amendment rights to substantive due process:

the Property Owners contend that the defendants' actions

were not based on any rationally supportable public health

concerns and that they "have impinged upon the [Property

Owners'] use and enjoyment of their real property by

mandating a financial charge and legal encumbrance

thereon, as well as limiting, controlling, and charging for

the use of said property." Complaint at p. 15. The third

count, undertaking to set forth a claim pursuant to 33

U.S.C. S 1365(a)(2), the civil enforcement provision of the

Clean Water Act,1 alleges that the DNREC defendants failed

_________________________________________________________________

1. 33 U.S.C. S 1365(a)(2) provides: "[A]ny citizen may commence a civil

action on his own behalf . . . against the [EPA] Administrator where

there is alleged a failure of the Administrator to perform any act or duty

under this chapter which is not discretionary with the Administrator."

4

to perform certain federally mandated environmental and

cost reviews.2

The Property Owners brought this suit as a proposed

class action, alleging their readiness to represent an

estimated 7000 persons said to be similarly situated. The

complaint recites that, by way of relief:

Plaintiffs request, for themselves and all other

members of the class, that:

A. The rights of the class members to have an

election on the establishment of the "West Rehoboth

Expansion of the Dewey Beach Sanitary Sewer

District" be adjudicated and declared, and that the

prior unlawfully decreed Sewer District be declared

void ab initio;

B. The defendants and each of them be

temporarily and permanently restrained and enjoined

from requiring members of the class to connect to the

unlawfully created sewer district and from charging

or assessing said members of the class for the costs

of creating, constructing, maintaining and operating

said sewer district (and any debt thereon), unless

and until such time as the sewer district is lawfully

created by election and compliance with 9 Del.C. Ch.

65, after proper environmental and cost review, and

from any further construction of said sewer district, or

creation of new debt thereon, without further order

of the Court;

C. The defendants be Ordered to notify all

persons, within the said sewer district, of their right

_________________________________________________________________

2. The complaint also contains a fourth count charging both sets of

defendants with a variety of derelictions of state law. However, there is

not complete diversity of citizenship as between the plaintiffs and the

defendants, with the result that the fourth count is one which could

come within the subject matter jurisdiction of the federal district court

only as a claim "supplemental" to validly pleaded federal claims. 28

U.S.C. S 1367(a). Since the district court concluded that the federal

claims were not cognizable, and it is the correctness of that ruling which

is now before this court, there is no present need for this court to

consider the fourth count.

5

to refuse to connect and/or to disconnect, and the

right to receive a refund, if exercising said right, of

any capitalization fees previously paid and/or any

quarterly rates or other fees and costs paid regarding

said sewer district.

D. The plaintiffs be awarded attorneys' fees and

other applicable costs or fees pursuant to 42 U.S.C.

section 1988;

E. The plaintiff class be awarded money damages

incident to the equitable relief requested and such

moneys be placed in trust. Such monies shall be

sufficient to compensate the plaintiff class members

for any liability and costs incurred on the new sewer

district, including but not limited to costs of

connections, fees previously paid by the plaintiffs to

the defendants plus interest, and to pay for any debt

created from construction of the sewer district; and

F. Plaintiffs have such other legal and equitable

relief as the Court may deem appropriate, including

costs and expenses.3

Complaint at pp. 19-20 (emphases in original).

In the district court, the defendants moved to dismiss all

or part of the suit -- or, in the alternative, to stay the suit

pending state court resolution of state law questions -- on

a variety of grounds. Defendants chiefly argued that: 1) the

Tax Injunction Act ("The district courts shall not enjoin,

suspend or restrain the assessment, levy or collection of

any tax under State law where a plain, speedy and efficient

remedy may be had in the courts of such State") was a bar

to the district court's subject matter jurisdiction; 2)

_________________________________________________________________

3. In their brief on appeal, the Property Owners have characterized the

relief they seek as "(a) A declaration that the`West Rehoboth Expansion

of the Dewey Beach Sanitary Sewer District' is void ab initio; (b)

Injunctive relief barring mandatory connections; barring new

construction on Phase III of the sewer project; and barring related

charges; (c) Attorney's fees and costs under 42 U.S.C. SS 1983 and 1988;

and (d) Compensatory damages resulting from the unlawful creation of

the sewer district and its sewer system." Appellants' Brief on Appeal, pp.

3-4.

6

principles of comity required dismissal of the suit; and 3)

the Clean Water Act claim was not cognizable against the

DNREC defendants. The district court concluded that the

suit should be dismissed. Kerns v. Dukes, 944 F. Supp.

1214 (D. Del. 1996). Central to the district court's analysis

was the determination that the suit was a challenge to the

imposition and enforcement of taxes: as noted above, the

suit seeks inter alia to enjoin the defendants "from charging

or assessing said members of the class for the costs of

creating, constructing, maintaining and operating said

sewer district (and any debt thereon)." As a challenge to a

local taxation scheme, the suit was found by the district

court to run afoul both of federal comity principles and of

the Tax Injunction Act, 28 U.S.C. S 1341. The district court

went on to state:

This holding does not put an end to plaintiffs' chances

of prevailing on their lawsuit in the state court system.

All arguments made by plaintiffs before this Court may

be made in a state court.

Id. at 1222. In an order dated November 8, 1996, the

district court dismissed the action for lack of subject matter

jurisdiction and the Property Owners appealed to this

court.

On appeal, the Property Owners contended that: "The

primary, objective purpose of the present lawsuit is to

address the arbitrary and capricious establishment of a

sewer district. Thus, the relief requested in the case at bar

does not implicate Federal Comity or the Tax Injunction

Act." Appellants' Brief p. 34. After oral argument, and

because the resolution of this appeal potentially implicated

a question of Delaware law, this court issued an order

certifying a question to the Supreme Court of Delaware.4

_________________________________________________________________

4. Delaware Supreme Court Rule 41(a)(ii) provides:

The Supreme Court of the United States, a Court of Appeals of the

United States, the United States District Court or the Highest

Appellate Court of any other State may, on motion or sua sponte,

certify to this Court for decision a question or questions of law

arising in any case before it prior to the entry offinal judgment

if

there is an important and urgent reason for an immediate

determination of such question or questions by this Court and the

certifying court has not decided the question or questions in the

case.

7

Our certification order read, in relevant part; 5

There are two crucial issues on appeal. As to the

first, without now deciding the issue we will assume for

the purposes of this certification order that the district

court is correct that plaintiffs' suit is the sort of

challenge to the processes of state and local taxation

which federal comity doctrines and the Tax Injunction

Act were designed to keep out of a federal district

court. The remaining issue is whether the courts of

Delaware can provide plaintiffs with (in the language of

the Tax Injunction Act, language which we also regard

as applicable to the comity aspect of the case) a"plain,

speedy and efficient remedy." This is of course a federal

question to be determined by this Court. However, the

federal question is one whose basic ingredients

constitute a question of Delaware law. Therefore, as

ordered below, we will certify to the Supreme Court of

Delaware the following question:

To what extent does the jurisdiction of Delaware's

courts (whether taken singly or in combination)

encompass plaintiffs' claims, and to what extent are

Delaware's courts able to provide such relief as those

claims, if sustained, would entail?

We seek, that is, to ascertain the degree to which

plaintiffs are able to pursue in the courts of Delaware

those claims that they have chiefly pressed in the

federal district court: "First, that they were arbitrarily

denied the right to vote on a new district. Second, they

were arbitrarily denied an environmental process which

we believe to be fixed and vested. And third, that the

sewer district that was built is not legitimately or

rationally related to an existing health menace for the

need for that sewer. And that's the basis of the

lawsuit." Argument of Counsel for Plaintiffs at Hearing

Before District Court on Motions to Dismiss, Oct. 16,

1996, Transcript at 16-17. We seek also to ascertain to

what degree the requested relief -- including a

_________________________________________________________________

5. The full text of this court's certification order is annexed hereto as

Appendix A.

8

declaratory judgment, injunctive relief, and money

damages -- may be obtained in the courts of Delaware.

The Delaware Supreme Court, after full briefing and

argument, handed down an opinion carefully and

comprehensively addressing the issues tendered by our

inquiry with respect to Delaware law. Regarding the

Property Owners' S 1983 claims, the Delaware Supreme

Court stated that:6

[T]he state courts of Delaware may hear the Property

Owners' S 1983 claims. . . . While concurrent

jurisdiction over S 1983 claims may lie in either the

Superior Court or the Court of Chancery, the selection

of the forum is dictated by the relief sought. The

Property Owners seek declaratory relief, injunctive

relief and money damages on their S 1983 claims. They

also seek an award of attorney's fees pursuant to 42

U.S.C. S 1988.

The Court of Chancery has exclusive jurisdiction

where injunctive relief is sought. The Court of

Chancery may award declaratory relief, where there is

otherwise a basis for equitable jurisdiction. The

requests for an award of money damages and for

attorneys' fees do not prevent the Court of Chancery

from exercising jurisdiction over the S 1983 claims. The

Court of Chancery, in its discretion, may elect to

exercise jurisdiction over legal claims concurrent to

equitable claims properly before it. Once the Court of

Chancery accepts jurisdiction over the entire

controversy, the court is empowered to resolve the

entire controversy, even if doing so requires an award

of a purely legal remedy, such as money damages.

Finally, sovereign immunity does not bar an action

brought pursuant to S 1983. Accordingly, the Court of

Chancery has jurisdiction over the Property Owners'

S 1983 claims.

Kerns v. Dukes, 707 A.2d 363, 367-68 (Del. 1998)

(footnotes and citations omitted). With respect to the

_________________________________________________________________

6. The full text of the Delaware Supreme Court's opinion is annexed

hereto as Appendix B.

9

Property Owners' claim that they were arbitrarily denied an

environmental review under the Clean Water Act, the

Delaware Supreme Court stated that:

Under 29 Del.C. S 8003(12) and the State Revolving

Fund Agreement, the DNREC Secretary is required to

conduct an environmental review. This review is

mandatory and may be enforced in equity. DNREC is

not protected from injunctive relief by the doctrine of

sovereign immunity. Thus, it appears that the Property

Owners would be able to obtain an injunction ordering

performance of the reviews they seek.

Id. at 369 (footnotes and citations omitted).

II.

Aided by the opinion of the Delaware Supreme Court, we

now are in a position to resolve the issues posed by this

appeal.

The Tax Injunction Act bars a federal court from

enjoining "the assessment, levy or collection of any tax

under state law" where state law provides a "plain, speedy

and efficient" remedy. In Rosewell v. LaSalle National Bank,

450 U.S. 503 (1981), the Supreme Court recognized that

"[t]he statute `has its roots in equity practice, in principles

of federalism, and in recognition of the imperative need of

a State to administer its own fiscal operations.' " Id. at 522

(quoting Tully v. Griffin, Inc. 429 U.S. 68, 73 (1976)). In

California v. Grace Brethren Church, 457 U.S. 393 (1982),

the Court held that the Tax Injunction Act bars federal

courts from hearing declaratory judgment actions in state

tax cases. Id. at 407.

In Fair Assessment in Real Estate v. McNary, 454 U.S.

100 (1981), the Court determined that suits seeking

damages because of the imposition of allegedly wrongful

taxes are not cognizable in a federal court; while not

expressly barred by the Tax Injunction Act, damage actions

are barred by principles of comity provided that effective

relief is obtainable in state court. The Court reasoned that

damage actions "would be no less disruptive of [a state's]

tax system than would the historic equitable efforts to

10

enjoin the collection of taxes, efforts which were early held

barred by considerations of comity." Id. at 112. Taken

together, the Tax Injunction Act and the Supreme Court's

decision in McNary make it clear that a federal court cannot

entertain a suit posing either an equitable or a legal

challenge to state or local taxes ("any tax under state law")

if a sufficient remedy (a remedy which the Tax Injunction

Act terms "plain, speedy and efficient" and which comity

views as "plain, adequate and complete")7 is available in

state court. See 454 U.S. at 115.

Therefore, this appeal presents two principal issues:

First, whether the Property Owners' suit constitutes a

challenge to the processes of state or local taxation; and

second, whether the courts of Delaware can provide the

Property Owners with a "plain, speedy and efficient" remedy

for the Property Owners' claims.

Subsequent to the issuance of the Delaware Supreme

Court's opinion, the Property Owners submitted to

this court a supplemental memorandum captioned

"Memorandum of Appellants Addressing the Delaware

Supreme Court's Answer to the Certified Question of Law."

In that memorandum, the Property Owners have

acknowledged that state law "affords them the potential for

all of the relief that they request in the Federal Complaint."

Appellants' Supplemental Memorandum, p. 3. Accordingly,

the Property Owners have narrowed their argument on

appeal to the following: "[w]hile the state forum may afford

all the relief requested, it is submitted that federal court

jurisdiction should remain open to the Property Owners

because this is not a state tax case (i.e., prong one of the

two part Federal Comity/Tax Injunction analysis)."8

_________________________________________________________________

7. In McNary, the Court stated that:

We discern no significant difference, for purposes of the

principles

recognized in this case, between remedies which are"plain,

adequate, and complete," as that phrase has been used in

articulating the doctrine of equitable restraint, and those which

are

"plain, speedy and efficient," within the meaning of S 1341.

454 U.S. at 115.

8. The Property Owners couple this argument with a contention that

"federal court jurisdiction should remain open to the Property Owners

11

Appellants' Supplemental Memorandum, p.4. The Property

Owners do not dispute the characterization of the

assessments in this case as a tax. They insist, however,

that the primary purpose of their suit is to "address the

arbitrary and capricious establishment of a sewer system"

and not to challenge the sewer assessments. Therefore,

according to the Property Owners, maintenance of this suit

would not constitute federal judicial interference with

Delaware's state or local tax system.

In McNary, the Supreme Court quoted with approval

Justice Brennan's explanation in an earlier case of the

rationale behind federal deference to state courts in state

tax cases:

The special reasons justifying the policy of federal

noninterference with state tax collection are obvious.

The procedures for mass assessment and collection of

state taxes and for administration and adjudication of

taxpayers' disputes with tax officials are generally

complex and necessarily designed to operate according

to established rules. State tax agencies are organized to

discharge their responsibilities in accordance with the

state procedures. If federal declaratory relief were

available to test state tax assessments, state tax

administration might be thrown into disarray, and

taxpayers might escape the ordinary procedural

requirements imposed by state law. During the

pendency of the federal suit the collection of revenue

under the challenged law might be obstructed, with

consequent damage to the State's budget, and perhaps

a shift to the State of the risk of taxpayer insolvency.

Moreover, federal constitutional issues are likely to

turn on questions of state law, which, like issues of

state regulatory law, are more properly heard in the

state courts.

_________________________________________________________________

because . . . state law was uncertain at the time of the filing of the

federal complaint." Appellants' Supplemental Memorandum, p. 4. We do

not think the authority of a federal district court to entertain a

plaintiff's

case can turn on the degree of the plaintiff's lack of certainty at the

inception of the litigation as to whether the plaintiff's claims are of a

kind that could be adequately addressed in a state court.

12

454 U.S. at 108 n.6 (quoting Perez v. Ledesma, 401 U.S.

82, 127-28 n.17 (1971) (Brennan, J., concurring in part

and dissenting in part)).

Viewing appellants' complaint in the light of Justice

Brennan's words, we are persuaded that maintenance of

this suit would impinge on exactly the state turf that

Congress and the Court have sought to protect against

federal judicial intrusion. The Property Owners are

challenging the actions of the County and DNREC

defendants in establishing the sewer system which has

given rise to the assessments they are now required to pay.

Given the relief sought -- that the sewer district be

"declared void" and that the defendants be "enjoined from

requiring members of the class to connect to the unlawfully

created sewer disrict and from charging or assessing said

members of the class for the costs of creating, constructing,

maintaining and operating said sewer district"9 -- we agree

with the district court that this action, if permitted to go

forward, would heavily involve the federal courts in

Delaware tax matters. And, given this direct and

substantial challenge to a system of assessments -- i.e.

taxes -- that is now in place, we find unpersuasive the

argument that the Property Owners' primary target is"the

arbitrary and capricious establishment of a sewer system"

and that this somehow insulates the Property Owners' suit

from the Tax Injunction Act and the demands of comity.10

_________________________________________________________________

9. Complaint, p. 19. See also supra note 3.

10. The proposition contended for by the Property Owners is illustrated

by Pendleton v. Heard, 824 F.2d 448, 451 (5th Cir. 1987), a case

strongly relied on by the Property Owners in their brief on appeal.

Pendleton v. Heard was a suit alleging that a proposed county bond

issue to finance bridge and road construction, if permitted to go forward

without any opportunity for county voters to seek a county election on

the bond issue, would contravene section 5 of the federal Voting Rights

Act. Noting that "the purpose of this suit is the vindication of voting

rights," and that "[a]ny effect on the issuance of bonds or the subsequent

imposition of taxes is incidental," id. at 452, the Fifth Circuit reversed

the district court's order dismissing the suit and remanded for trial

before a statutory three-judge court as required by the Voting Rights Act.

In the case at bar, the Property Owners, in challenging assessments that

have already been imposed, are seeking to recover the assessments that

13

Finally, we turn to the question whether the Delaware

courts can provide a "plain, speedy and efficient" remedy to

the Property Owners. In order for a remedy in Delaware's

state courts to satisfy this standard, it must be

procedurally adequate, Rosewell, 450 U.S. at 512, and

provide a " `full hearing and judicial determination' at which

[the Property Owners] may raise any and all constitutional

objections to the tax." Id. at 514 (quoting LaSalle National

Bank v. County of Cook, 312 N.E.2d 252, 255-56 (Ill.

1974)).

The opinion of the Delaware Supreme Court makes it

clear that the courts of Delaware can indeed provide the

forms of judicial inquiry and (as appropriate) judicial

remedy that meet the requirements of the Tax Injunction

Act and the principles of comity. Indeed, as noted above,

the supplemental memorandum submitted to this court by

the Property Owners subsequent to the issuance of the

authoritative opinion of the Delaware Supreme Court has

affirmed the Property Owners' recognition that Delaware

law "affords them the potential for all of the relief that they

request in the Federal Complaint."11 And should it be the

_________________________________________________________________

have been paid and to enjoin collection of the assessments in the future.

Closer to the mark than Pendleton v. Heard is Carson v. City of Fort

Lauderdale, 293 F.2d 337 (5th Cir. 1961), in which the Fifth Circuit

affirmed dismissal, pursuant to the Tax Injunction Act, of a suit in which

"[p]laintiffs . . . seek an injunction to restrain the city from carrying

forward its plan to install sewers and make the consequent assessments

and service charges." Id. at 338. See also Burris v. City of Little Rock,

941 F.2d 717 (8th Cir. 1991) (holding that the Tax Injunction Act barred

review of a S 1983 action to challenge an assessment to pay for sewer

improvements).

11. In assessing the scope of the phrase "all of the relief that [the

Property Owners] request in the Federal Complaint," it should be borne

in mind that the complaint embraces two S 1983 claims and a Clean

Water Act claim under 33 U.S.C. S 1365(a)(2). The district court

"dismiss[ed] plaintiff 's action based on considerations of comity and the

Tax Injunction Act. As a result . . . the applicability of the Clean Water

Act [was] not considered." 944 F. Supp. 1218. Given our disposition of

the antecedent comity and Tax Injunction Act issues, it would not

appear appropriate for this court to undertake to resolve the academic

14

case that the anticipated proceedings in the Delaware

courts fail to resolve issues of federal law in a manner

deemed by the Property Owners to be satisfactory, the

Property Owners would, pursuant to the Federal Judicial

Code, be able to seek certiorari review by the Supreme

Court of the United States. 28 U.S.C. S 1257.

III.

For the foregoing reasons, the judgment of the district

court will be affirmed.

_________________________________________________________________

question whether the Clean Water Act claim, were it separable from the

companion counts of the complaint and from the broad relief sought,

would have been cognizable. Suffice it to note that it is at least

doubtful

that a claim that state officials failed to perform certain federally

mandated environmental and cost reviews fits within the framework of

33 U.S.C. S 1365(a)(2), which authorizes a citizen to "commence a civil

action on his own behalf . . . against the [EPA] Administrator where

there is alleged a failure of the Administrator to perform any act or duty

under this chapter which is not discretionary with the Administrator." In

any event, it appears from the opinion of the Delaware Supreme Court

that a lawsuit seeking a court order requiring the DNREC Secretary to

conduct a mandated environmental review is tenable under Delaware's

equity jurisprudence.

15

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-7751

JOSEPH KERNS, et al.

Appellants

v.

DALE R. DUKES, et al.

Appellees

On Appeal From the United States District Court

for the District of Delaware

(D.C. Civ. No. 96-113)

Present: SLOVITER, Chief Judge,

ROTH, Circuit Judge, and POLLAK, District Judge*

ORDER CERTIFYING A QUESTION OF LAW PURSUANT

TO DELAWARE SUPREME COURT RULE 41

This 31st day of July 1997, the Court having found that:

(1) This matter came before the United States Court of

Appeals for the Third Circuit on May 21, 1997, on appeal

from a final judgment of the United States District Court for

the District of Delaware, Honorable Murray M. Schwartz,

United States District Judge, dismissing plaintiffs'

complaint on grounds of comity and/or for lack of

jurisdiction, see 944 F. Supp. 1214 (D. Del. 1996);

_________________________________________________________________

* Hon. Louis H. Pollak, United States District Judge for the Eastern

District of Pennsylvania, sitting by designation.

16

(2) The following facts are undisputed:

(a) This civil action challenges decisions taken by the

defendants -- members and officials of the Sussex County

Council ("the County defendants"), and officials of the

Delaware Department of Natural Resources and

Environmental Control (DNREC) -- to (1) authorize the

establishment of the "West Rehoboth Expansion of the

Dewey Beach Sanitary Sewer District" and (2) take

subsequent steps to implement such authorization. The

plaintiffs -- appellants in this Court -- are several persons

owning real property in the expanded sewer district. The

plaintiffs allege that, by virtue of the establishment of the

expanded sewer district, they are being compelled to

discontinue reliance on their own septic systems and, in

lieu thereof, to join the expanded sewer system and to pay

an array of service charges and fees for the privilege of

obligatory participation in the expanded sewer system.

(b) The complaint sets forth three counts arising under

federal law. The first count, based upon 42 U.S.C.S 1983,

alleges deprivations by the County defendants of plaintiffs'

Fourteenth Amendment rights to procedural due process;

this count undergirds plaintiffs' most strongly argued claim

-- namely, that under Delaware law the establishment of

the expanded sewer district could be legally accomplished

only pursuant to a vote (an "election") of the affected

property owners, a required procedural step not taken in

this instance. The second count, also based upon 42 U.S.C.

S 1983, alleges that the actions of the County defendants

and the DNREC defendants have infringed upon plaintiffs'

Fourteenth Amendment rights to substantive due process:

plaintiffs contend that the defendants' actions were not

based on any rationally supportable public health concerns

and that they "have impinged upon the plaintiffs' use and

enjoyment of their real property by mandating afinancial

charge and legal encumbrance thereon, as well as limiting,

controlling, and charging for the use of said property."

Complaint at 15. The third count, undertaking to set forth

a claim pursuant to 33 U.S.C. S 1365(a)(2), alleges that the

DNREC defendants failed to perform certain federally

mandated environmental and cost reviews. (The complaint

also contains a fourth count charging both sets of

17

defendants with a variety of derelictions of state law.

However, there is not complete diversity of citizenship as

between the plaintiffs and the defendants, with the result

that the fourth count is one which could come within the

subject matter jurisdiction of the federal district court only

as a claim "supplemental" to validly pleaded federal claims.

28 U.S.C. S 1367(a). Since the district court concluded that

the federal claims were not cognizable, and it is the

correctness of that ruling which is now before this Court,

there is no present need for this Court to consider the

fourth count.)

(c) The plaintiffs have brought this suit as a proposed

class action, alleging their readiness to represent an

estimated 7000 persons said to be similarly situated. The

complaint recites that, by way of relief:

Plaintiffs request, for themselves and all other

members of the class, that:

A. The rights of the class members to have an

election on the establishment of the "West Rehoboth

Expansion of the Dewey Beach Sanitary Sewer District"

be adjudicated and declared, and that the prior

unlawfully decreed Sewer District be declared void ab

initio;

B. The defendants and each of them be temporarily

and permanently restrained and enjoined from

requiring members of the class to connect to the

unlawfully created sewer district and from charging or

assessing said members of the class for the costs of

creating, constructing, maintaining and operating said

sewer district (and any debt thereon), unless and until

such time as the sewer district is lawfully created by

election and compliance with 9 Del.C. Ch. 65, after

proper environmental and cost review, and from any

further construction of said sewer district, or creation of

new debt thereon, without further order of the Court;

C. The defendants be Ordered to notify all persons,

within the said sewer district, of their right to refuse to

connect and/or to disconnect, and the right to receive

a refund, if exercising said right, of any capitalization

18

fees previously paid and/or any quarterly rates or

other fees and costs paid regarding said sewer district.

D. The plaintiffs be awarded attorneys' fees and

other applicable costs or fees pursuant to 42 U.S.C.

section 1988;

E. The plaintiff class be awarded money damages

incident to the equitable relief requested and such

moneys be placed in trust. Such monies shall be

sufficient to compensate the plaintiff class members for

any liability and costs incurred on the new sewer

district, including but not limited to costs of

connections, fees previously paid by the plaintiffs to

the defendants plus interest, and to pay for any debt

created from construction of the sewer district; and

F. Plaintiffs have such other legal and equitable

relief as the Court may deem appropriate, including

costs and expenses.

Complaint at 19-20 (emphases in original).

(d) In the district court, the defendants moved to

dismiss all or part of the suit -- or, in the alternative, to

stay the suit pending state court resolution of state law

questions -- on a variety of grounds. The district court

concluded that the suit should be dismissed. Central to its

analysis was the determination that the suit was a

challenge to the imposition and enforcement of taxes: as

noted above, the suit seeks inter alia to enjoin the

defendants "from charging or assessing said members of the

class for the costs of creating, constructing, maintaining

and operating said sewer district (and any debt thereon)."

As a challenge to a local taxation scheme, the suit was

found by the district court to run afoul both of federal

comity doctrines, see, e.g., Fair Assessment in Real Estate

Ass'n v. McNary, 454 U.S. 100 (1981), and of the Tax

Injunction Act, 28 U.S.C. S 1341, which provides: "The

district courts shall not enjoin, suspend or restrain the

assessment, levy or collection of any tax under State law

where a plain, speedy and efficient remedy may be had in

the courts of such State." Specifically, the district court

held:

19

Mindful of the fact that Sussex County already has

invested $70,000,000 in the sewer district and the

plaintiffs have been assessed taxes, the Court finds

that permitting the present case to go forward will

result in substantial federal court interference in the

County's revenue collecting ability. The Court

alternatively dismisses the case based on the Tax

Injunction Act.

944 F. Supp. at 1222. The district court went on to state:

This holding does not put an end to plaintiffs' chances

of prevailing on their lawsuit in the state court system.

All arguments made by plaintiffs before this Court may

be made in a state court.

Id. This latter recital was not developed in detail in the

district court's opinion;

(3) The question of law set forth below should be certified

to the Supreme Court of Delaware for the following reasons:

(a) There are two crucial issues on appeal. As to the

first, without now deciding the issue we will assume for the

purposes of this certification order that the district court is

correct that plaintiffs' suit is the sort of challenge to the

processes of state and local taxation which federal comity

doctrines and the Tax Injunction Act were designed to keep

out of a federal district court. The remaining issue is

whether the courts of Delaware can provide plaintiffs with

(in the language of the Tax Injunction Act, language which

we also regard as applicable to the comity aspect of the

case) a "plain, speedy and efficient remedy." This is of

course a federal question to be determined by this Court.

However, the federal question is one whose basic

ingredients constitute a question of Delaware law.

Therefore, as ordered below, we will certify to the Supreme

Court of Delaware the following question:

To what extent does the jurisdiction of Delaware's

courts (whether taken singly or in combination)

encompass plaintiffs' claims, and to what extent are

Delaware's courts able to provide such relief as those

claims, if sustained, would entail?

20

We seek, that is, to ascertain the degree to which plaintiffs

are able to pursue in the courts of Delaware those claims

that they have chiefly pressed in the federal district court:

"First, that they were arbitrarily denied the right to vote on

a new district. Second, they were arbitrarily denied an

environmental process which we believe to be fixed and

vested. And third, that the sewer district that was built is

not legitimately or rationally related to an existing health

menace for the need for that sewer. And that's the basis of

the lawsuit." Argument of Counsel for Plaintiffs at Hearing

Before District Court on Motions to Dismiss, Oct. 16, 1996,

Transcript at 16-17. We seek also to ascertain to what

degree the requested relief -- including a declaratory

judgment, injunctive relief, and money damages -- may be

obtained in the courts of Delaware.

(b) Resolution of the issues of law presented in the

certified question will guide this Court's analysis of the

federal question whether a "plain, speedy and efficient"

remedy is available to plaintiffs in the courts of Delaware.

In the absence of such an available remedy, this case will

be heard in federal courts rather than state courts whether

or not this Court concludes that the complaint constitutes

a challenge to processes of state and local taxation. An

appropriate regard for the delicate balance between state

and national judicial authority counsels that, insofar as

feasible, decisions relating to the jurisdiction and remedial

capacity of the Delaware state courts -- decisions central to

the resolution of this case -- be made by the Delaware

courts themselves.

(c) Our concern about the remedy available in the

Delaware courts arises in part from the potential tension

between the decision of the Court of Chancery in Delaware

Bankers Ass'n v. Division of Revenue of the Dep't of

Finance, 298 A.2d 352, 356 (Del. Ch. 1972) (holding that in

some cases there is an adequate remedy at law for an

attack on an illegal or unconstitutional tax through the Tax

Appeal Board), and that of the Superior Court in Tatten

Partners v. New Castle County Bd. of Assessment Review,

642 A.2d 1251, 1262-65 (Del. Super. 1993) (holding that

taxpayer could not have presented substantive due process

claim to the Board of Assessment Review because of the

limited jurisdiction of that board);

21

(4) The important and urgent reasons for an immediate

determination by the Supreme Court of Delaware of the

question certified are:

(a) Determination of the certified question is important

to the resolution of a controversy that assertedly affects

some 7000 Delaware property owners and challenges

outlays of at least $70,000,000. The State of Delaware has

a substantial interest in ensuring the most authoritative

possible determination of the issues on which this litigation

turns.

(b) A definitive determination by the Supreme Court of

Delaware of the remedies available to plaintiffs in the

Delaware state courts will obviate the need for this Court to

speculate on that question, and will avert the possibility

that this Court would arrive at a conclusion inconsistent

with the authoritative result that might be obtained from

Delaware's highest court;

(5) If certification is accepted, it is recommended that the

plaintiffs (Joseph Kerns, et al.) be appellants, and that the

defendants (Dale R. Dukes, et al.) be appellees, for

purposes of the caption on any filings in the Supreme

Court of Delaware with respect to the question certified.

NOW, THEREFORE, IT IS ORDERED that the following

question of law is certified to the Supreme Court of the

State of Delaware for disposition in accordance with Rule

41 of that Court:

To what extent does the jurisdiction of Delaware's

courts (whether taken singly or in combination)

encompass plaintiffs' claims, and to what extent are

Delaware's courts able to provide such relief as those

claims, if sustained, would entail?

In accordance with Supreme Court Rule 41, it is

recommended that briefs shall be filed in the Supreme

Court in the following order: the initial brief shall be filed

by the plaintiffs as appellants, and any responsive brief(s)

shall be filed by the defendants as appellees.

This Court shall retain jurisdiction meanwhile.

BY:

Louis H. Pollak

22

FOR: Dolores K. Sloviter

Chief Judge

United States Court of Appeals

for the Third Circuit

Jane R. Roth

Circuit Judge

United States Court of Appeals

for the Third Circuit

Louis H. Pollak

District Judge

United States District Court

for the Eastern District of

Pennsylvania

(sitting by designation)

DATED: July 31, 1997

Counsel for the Parties:

FRANCIS J. TRZUSKOWSKI

JAMES F. KIPP

FRANCIS J. SCHANNE

Trzuskowski, Kipp, Kelleher & Pearce

1020 N. Bancroft Parkway

P.O. Box 429

Wilmington, DE 19899

Attorneys for Appellants

CARL SCHNEE

PATRICIA A. PYLES

Prickett, Jones, Elliott,

Kristol & Schnee

1310 King Street

P.O. Box 1328

Wilmington, DE 19899

23

DENNIS L. SCHRADER

VERONICA O. FAUST

Wilson, Halbrook & Bayard

107 West Market Street

P.O. Box 690

Georgetown, DE 19947

Attorneys for Appellees

Dale Dukes, George J. Collins,

William D. Stevenson, Sr.,

George B. Cole, Ralph E. Benson,

Robert L. Stickels, and Robert W. Wood

KEITH A. TROSTLE

DAVID L. ORMOND, JR.

KEVIN P. MALONEY

Department of Justice

Carvel State Office Building

820 N. French Street

Wilmington, DE 19801

Attorneys for Appellees

Christophe A.G. Tulou,

Edwin H. Clark, and

Gerald Esposito

24

APPENDIX B

Joseph KERNS, Kathleen Kerns, William M. Torney, Lois

A. Torney, Maureen Moyer,

John D. Coffman and Martha C. Coffman, individually

and as representative

plaintiffs on behalf of the certified class, Defendants

Below,

Appellants,

v.

Dale DUKES, individually and as Sussex County

Government President and Council

President, and George J. Collins, individually and as

Sussex County Council

Member, and William D. Stevenson, individually and as

Sussex County

Council Member, and George B. Cole, individually and as

Sussex County Council

Member, and Ralph E. Benson, individually and as

Sussex County Member, and

Robert L. Stickels, individually and as Sussex County

Administrator, and Robert

W. Wood, individually and as Sussex County Engineer,

and Christophe A. Tulou,

individually and as Delaware Department of Natural

Resources and Environmental

Control Secretary, and Gerald L. Esposito, individually

as a Director of

Delaware Department of Natural Resources and

Environmental Control, and Edwin

H. Clark, individually and as then Secretary of Delaware

Department of Natural

Resources and Environmental Control, Plaintiffs Below,

Appellees.

No. 338, 1997.

Supreme Court of Delaware.

Submitted: Jan. 20, 1998.

Decided: March 27, 1998.

Court Below: United States Court of Appeals for the Third

Circuit, Docket No. 96-7751.

25

Francis J. Trzuskowski, James F. Kipp, Francis J.

Schanne (argued), and F.L. Peter Stone, Trzuskowski, Kipp,

Kelleher & Pearce, P.A., Wilmington, for Appellants.

Dennis L. Schrader (argued) and Veronica O. Faust,

Wilson, Halbrook & Bayard, Georgetown and Carl Schnee,

and Patricia A. Pyles McGonigle, Prickett, Jones, Elliott,

Kristol & Schnee, Wilmington, for Appellees Dale R. Dukes,

George J. Collins, William D. Stevenson, Sr., George B.

Cole, Ralph E. Benson, Robert L. Stickels, and Robert W.

Wood.

Keith A. Trostle, Deputy Attorney General, Department of

Justice, Wilmington, for Appellees Department of Natural

Resources and Environmental Control and Secretary

Christophe A. Tulou.

Kevin P. Maloney, Deputy Attorney General, Department

of Justice, Wilmington, for Appellees Department of Natural

Resources and Environmental Control and Director Gerald

P. Esposito.

David L. Ormond, Jr., Deputy Attorney General,

Department of Justice, Wilmington, for Appellees Delaware

Department of Natural Resources and Environmental

Control and Secretary Edwin H. Clark.

Before VEASEY, C.J., WALSH and BERGER, JJ.

WALSH, Justice:

This matter originated through the filing of a civil action

in the United States District Court for the District of

Delaware. Plaintiffs in that action are Sussex County,

Delaware, property owners (the "Property Owners"), who

challenged the decision to create a new sewer district, in

which they are included, and the actions taken to

implement that decision by defendants, the members and

officials of the Sussex County Council (the "County") and

officials of the Delaware Department of Natural Resources

and Environmental Control ("DNREC"). The District Court

dismissed the action on jurisdictional grounds, and the

Property Owners appealed to the United States Court of

Appeals for the Third Circuit (the "Third Circuit").

By order dated July 31, 1997, the Third Circuit certified

the following question of law to this Court:

26

To what extent does the jurisdiction of Delaware's

courts (whether taken singly or in combination)

encompass plaintiffs' claims, and to what extent are

Delaware's courts able to provide such relief as those

claims, if sustained, would entail?

For the purpose of this certification, the Third Circuit

assumes that the Property Owners' suit is the sort of

challenge to the processes of state and local taxation that

federal comity doctrines and the Tax Injunction Act were

designed to preclude from the jurisdiction of federal district

courts.1

We conclude, in answer to the certified question, that the

Court of Chancery would have jurisdiction over a state

action based on the Property Owners' claims and could

provide full relief on those claims, if sustained.

I.

The Property Owners' suit was brought as a purported

class action, with the class estimated at 7,000 Sussex

County property owners. They assert standing to pursue

their claims as taxpayers. The Property Owners contend

that they are being compelled to discontinue reliance on

their own septic systems, and to join and to pay the costs

of, and fees for, the expanded sewer system. In the

complaint, the Property Owners allege: (i) violation of their

procedural due process rights, under the 14th Amendment

and 42 U.S.C. S 1983, by the County's failure to hold a vote

on expansion of the sewer district; (ii) violation of their

substantive due process rights, under the 14th Amendment

and 42 U.S.C. S 1983, by actions taken by the County and

DNREC, which were not based on any rationally

supportable public health concern and which impinge upon

their use and enjoyment of their real property though

financial charge and legal encumbrances thereon; and (iii)

failure by DNREC to undertake environmental and cost

_________________________________________________________________

1. The Tax Injunction Act provides that federal courts "shall not enjoin,

suspend or restrain the assessment, levy or collection of any tax under

State law where a plain, speedy and efficient remedy may be had in the

courts of such State." 28 U.S.C. S 1341.

27

reviews federally mandated in the Clean Water Act (the

"CWA"), see 33 U.S.C. S 1251,et seq.2 The Property Owners'

counsel summarized their claims as

[f]irst, that they were arbitrarily denied the right to vote

on a new district. Second, they were arbitrarily denied

an environmental process which we believe to befixed

and vested. And third, that the sewer district that was

built is not legitimately or rationally related to an

existing health menace....

As relief, the Property Owners request, "for themselves

and all other members of the class," that:

A. The rights of the class members to have an

election on the establishment of the "West Rehoboth

Expansion of the Dewey Beach Sanitary Sewer District"

be adjudicated and declared, and that the prior

unlawfully decreed Sewer District be declared void ab

initio;

B. The defendants and each of them be temporarily

and permanently restrained and enjoined from

requiring members of the class to connect to the

unlawfully created sewer district and from charging or

assessing said members of the class for the costs of

creating, constructing, maintaining and operating said

sewer district (and any debt thereon), unless and until

such time as the sewer district is lawfully created by

election and compliance with 9 Del.C. ch. 65, after

proper environmental and cost review, and from any

further construction of said sewer district, or creation

of new debt thereon, without further order of the

Court;

C. The defendants be Ordered to notify all persons,

within the said sewer district, of their right to refuse to

connect and/or disconnect and the right to receive a

refund, if exercising said right, of any capitalization

_________________________________________________________________

2. Property Owners also bring a fourth claim, based solely on state law,

which is before the federal court as a claim supplemental to validly

pleaded federal claims. Because only the validity of the federal claims is

now before the Third Circuit, there is no need to consider the fourth

claim at this time.

28

fees previously paid and/or any quarterly rates or

other fees and costs paid regarding said sewer district;

D. The plaintiffs be awarded attorneys' fees and

other applicable costs or fees pursuant to 42 U.S.C.

section 1988;

E. The plaintiff class be awarded money damages

incident to the equitable relief requested and such

monies placed in trust. Such monies shall be sufficient

to compensate the plaintiff class members for any

liability and costs incurred on the new sewer district,

including but not limited to costs of connections, fees

previously paid by plaintiffs to the defendants plus

interest, and to pay for any debt created from the

construction of the sewer district; and

F. Plaintiffs have such other legal and equitable

relief as the Court may deem appropriate, including

costs and expenses.

(Complaint at 19-20 (emphasis in original).) In sum, the

Property Owners seek declaratory relief, injunctive relief,

money damages, and counsel fees.

The County and DNREC moved, on various grounds, to

dismiss all or part of the suit, or, in the alternative, to stay

the suit pending state court resolution of state law

questions. The United States District Court for the District

of Delaware dismissed the suit for lack of jurisdiction based

on the Tax Injunction Act.3 Kerns v. Dukes, D.Del., 944

F.Supp. 1214, 1219-22 (1996). The District Court

concluded, in part, that allowing the Property Owners to

pursue their claim in federal court would result in

"substantial federal court interference in [Sussex] County's

revenue collecting ability." Id. at 1222.

The Property Owners appealed the dismissal to the Third

Circuit, where the appeal is now pending. To address fully

the Property Owners' claims on appeal, the Third Circuit

must determine the federal question of whether a"plain,

_________________________________________________________________

3. The District Court also dismissed the suit on the alternative ground of

comity. Because the question as certified implicates only the

jurisdictional ruling, we do not address comity concerns.

29

speedy and efficient"4 remedy is available for the Property

Owners in Delaware's courts. Specifically, the Third Circuit

seeks guidance from this Court as to the following:

We seek, that is, to ascertain the degree to which

plaintiffs are able to pursue in the courts of Delaware

those claims that they have chiefly pressed in the

federal district court: `First, that they were arbitrarily

denied the right to vote on a new district. Second, they

were arbitrarily denied an environmental process which

[they] believe to be fixed and vested. And third, that the

sewer district that was built is not legitimately or

rationally related to an existing health menace for the

need for that sewer....' We seek also to ascertain to

what degree the requested relief--including a

declaratory judgment, injunctive relief, and money

damages--may be obtained in the courts of Delaware.

The Third Circuit certified its question to this Court out of

concern for what it sees as "potential tension" between the

decision of the Court of Chancery in Delaware Bankers

Association v. Division of Revenue of the Department of

Finance, Del.Ch., 298 A.2d 352 (1972), and the Superior

Court's holding in Tatten Partners v. New Castle County

Board of Assessment Review, Del.Super., 642 A.2d 1251

(1993).

II.

This Court must examine a certified question of law in

the context in which it arises. Rales v. Blasband, Del.Supr.,

634 A.2d 927, 931 (1993). "The scope of issues that may be

considered in addressing a certified question is limited by

the procedural posture of the case." Id. The matter before

the Third Circuit on appeal arises from a motion to dismiss.

On appeal from a motion to dismiss, all well-pled

allegations of the complaint are accepted as true. Precision

Air, Inc. v. Standard Chlorine of Del., Inc., Del.Supr., 654

A.2d 403, 406 (1995). Moreover, our certification

acceptance is limited to the facts stated in the Third

Circuit's Order of certification. Supr.Ct.R. 41(c)(iv). This

_________________________________________________________________

4. Tax Injunction Act. 28 U.S.C. S 1341.

30

requirement necessarily limits the scope of our holding to

the facts recited infra.

A.

We first consider the Property Owners' claims brought

pursuant to 42 U.S.C. S 1983, alleging violation of

substantive and procedural due process rights by the

County and by DNREC. State courts have concurrent

jurisdiction with the federal courts over actions brought

under S 1983. Martinez v. California, 444 U.S. 277, 100

S.Ct. 553, 62 L.Ed.2d 481 (1980). Thus, the state courts of

Delaware may hear the Property Owners' S 1983 claims.

The Property Owners express concern about an apparent

conflict between the holdings in Delaware Bankers and

Tatten Partners. A closer examination of the two cases,

however, reveals that there is no actual tension. In

Delaware Bankers, the Court of Chancery declined to

exercise equitable jurisdiction because there was an

adequate remedy at law for the alleged constitutional

violations resulting from the application of a tax--review by

the State Tax Commissioner, followed by appeals, as of

right, first to the Tax Appeal Board and finally to the

Superior Court.5 298 A.2d at 358. Tatten Partners holds

that a taxpayer's S 1983 claim against the county Board of

Assessment is not properly before the Superior Court on

appeal from the Board because judicial review is limited to

the merits of the assessment proceeding. 642 A.2d at 1262.

These cases, however, do not prevent primary jurisdiction

in either the Superior Court or the Court of Chancery over

direct claims made pursuant to S 1983. Further, the

Property Owners are not barred from access to the Superior

Court by Tatten Partners because there is no administrative

remedy that they must first exhaust. See Del.C., title 9;

Carr v. Board of Assessment Review, Del.Super., C.A. No.

93A-04-008, Graves, J., 1995 WL 109003 (Feb. 22, 1995);

Riley v. Banks, Del.Super., 62 A.2d 229 (1948).

While concurrent jurisdiction over S 1983 claims may lie

_________________________________________________________________

5. Delaware Bankers also addresses the requirements for class actions

under Court of Chancery Rule 23.

31

in either the Superior Court or the Court of Chancery, the

selection of the forum is dictated by the relief sought. The

Property Owners seek declaratory relief, injunctive relief

and money damages on their S 1983 claims. 6 They also seek

an award of attorney's fees pursuant to 42 U.S.C. S 1988.

The Court of Chancery has exclusive jurisdiction where

injunctive relief is sought. 10 Del.C. S 341; Clark v. Teeven

Holding Co., Del.Ch., 625 A.2d 869, 875 (1992) (citing 1

Pomeroy, Equity Jurisprudence S 139 (5th ed. 1951)). See

also, du Pont v. du Pont, Del.Supr., 85 A.2d 724 (1951). The

Court of Chancery may award declaratory relief, where

there is otherwise a basis for equitable jurisdiction. 10

Del.C. S 6501. The requests for an award of money damages

and for attorneys' fees do not prevent the Court of

Chancery from exercising jurisdiction over the S 1983

claims. The Court of Chancery, in its discretion, may elect

to exercise jurisdiction over legal claims concurrent to

equitable claims properly before it. Clark, 625 A.2d at 881-

82. Once the Court of Chancery accepts jurisdiction over

the entire controversy, the court is empowered to resolve

the entire controversy, even if doing so requires an award

of a purely legal remedy, such as money damages. Wilmont

Homes v. Weiler, Del.Supr., 202 A.2d 576, 580 (1964).

Finally, sovereign immunity does not bar an action brought

pursuant to S 1983. See Will v. Michigan Dept. of State

Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 2312 n. 10,

105 L.Ed.2d 45 (1989) (injunctive relief is available under

S 1983 against a state official in his or her official capacity);

Monell v. Department of Soc. Servs., 436 U.S. 658, 690, 98

S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978) (S 1983 applies

to municipalities and other local governments). Accordingly,

the Court of Chancery has jurisdiction over the Property

Owners' S 1983 claims.

With respect to the equivalency of the relief available in

_________________________________________________________________

6. To the extent that it is later determined that an adequate remedy at

law exists for the Property Owners' S 1983 claims, which the Third

Circuit has assumed to be challenges to state taxation, neither a

Delaware court nor a federal court could award injunctive or declaratory

relief. National Private Truck Council v. Oklahoma Tax Cmm'n, 515 U.S.

582, 592, 115 S.Ct. 2351, 2357, 132 L.Ed.2d 509 (1995).

32

Delaware's courts, the concurrent jurisdiction of state

courts over S 1983 claims allows for relief identical to that

available in federal courts. Further, the Property Owners

would be entitled to recover attorneys' fees, pursuant to 42

U.S.C. S 1988, in Delaware's courts, provided that they

establish that disposition of the case was on "substantial"

constitutional grounds. Slawik v. State, Del.Supr., 480 A.2d

636, 640-41 (1984). In any event, the inability to recover

attorneys' fees does not render the state remedy

inadequate. National Private Truck Council, 515 U.S. at 592,

115 S.Ct. at 2357. Accordingly, the answer to the certified

question is that Delaware's courts would have jurisdiction

over the Property Owners' S 1983 claims and, should the

Property Owners prevail, they would be entitled to relief

equivalent to that available in a federal court.

B.

Turning next to the Clean Water Act claims, we are asked

to determine whether Delaware's courts would have

jurisdiction over a state action embracing the substance of

those claims and, should the Property Owners prevail,

whether Delaware's courts could grant relief equivalent to

that available in federal court. The answer to the relief

question controls the jurisdiction question and, thus, must

be addressed first. Upon careful review of the Property

Owners' complaint, it appears clear that they seek

injunctive relief requiring DNREC to perform federally

mandated environmental and cost reviews. See Western Air

Lines, Inc. v. Allegheny Airlines, Inc., Del.Ch., 313 A.2d 145

(1973). The relief available in a citizen suit brought

pursuant to 33 U.S.C. S 1365(a)(2)7 is limited to: (i) an order

_________________________________________________________________

7. 33 U.S.C. S 1365(a)(2) provides that

any citizen may commence a civil action on his own behalf--

* * *

(2) against the Administrator where there is an alleged failure of

the Administrator to perform any act or duty under this chapter

which is not discretionary with the Administrator.

The district courts shall have jurisdiction ... to enforce such an

effluent standard or limitation, or such an order, or to order the

Administrator to perform such act or duty....

33

directed to the EPA Administrator8 requiring performance of

a nondiscretionary duty, such as performing the

environmental and cost reviews; and (ii) an award of costs,

including attorneys' fees pursuant to 33 U.S.C.S 1365(d),

to be made at the discretion of the District Court.

Under 29 Del.C. S 8003(12)9 and the State Revolving Fund

Agreement,10 the DNREC Secretary is required to conduct

an environmental review. This review is mandatory and

may be enforced in equity. See Choma v. O'Rouke, Del.Ch.,

300 A.2d 39, 41 (1972) (Court of Chancery may review a

decision by an state agency administrator where the

decision was arbitrary or an abuse of discretion). DNREC is

not protected from injunctive relief by the doctrine of

sovereign immunity. See Will, supra. Thus, it appears that

the Property Owners would be able to obtain an injunction

ordering performance of the reviews they seek. With respect

to attorneys' fees, the Court of Chancery may award

attorneys' fees as costs pursuant to 10 Del.C. S 5106 and

Court of Chancery Rule 54(d), where, in its discretion, the

equities so dictate. Wilmington Trust Co. v. Coulter, Del.Ch.,

208 A.2d 677, 681-82 (1965). Accordingly, it appears that

equivalent relief is available in the Court of Chancery.

Because injunctive relief is sought, jurisdiction lies in the

Court of Chancery. 10 Del.C. S 341; Clark, supra. It does

not appear that there are any requirements incident to

securing preliminary injunctive relief in the Court of

Chancery that would not be required of the Property

Owners in a federal action. The Property Owners could be

_________________________________________________________________

8. The parties agree that the EPA Administrator would not be a

necessary party to any state action.

9. 29 Del.C. S 8003(12) provides, in pertinent part, that "[t]he Secretary

shall conduct an environmental review of projects otherwise qualifying

under this subsection which shall be sufficiently consistent with the

provisions for environmental review established under 40 C.F.R., Part 6,

and the Secretary's environmental review standards established in Title

7."

10. The State Revolving Fund Agreement is the agreement between the

EPA Administrator and the State of Delaware that permits the grant of

federal funds, pursuant to 33 U.S.C. S 1381(a), to provide assistance in

the construction, implementation or development of water pollution

control programs. 33 U.S.C. S 1382(a).

34

required to post a bond under either Federal Rule of Civil

Procedure 65(c) or under Court of Chancery Rule 65(c).11 33

U.S.C. S 1365(d). Further, there are no administrative

remedies that the Property Owners would be required to

exhaust before bringing their suit directly in the Court of

Chancery.

In sum, the answer to the certified question is that the

jurisdiction of Delaware's courts encompasses claims based

on the CWA and that Delaware's courts are capable of

providing such relief as those claims, if sustained, would

entail.

On the basis of the foregoing, we conclude that the

answer to the certified question is as follows:

The jurisdiction of the courts of Delaware encompasses

the Property Owners' S 1983 claims as brought, and

such courts may provide relief equivalent to that

available in federal court, should the claims be

sustained. The jurisdiction of the courts of Delaware

also encompasses state law claims upon which the

Property Owners may recover relief equivalent to that

available in federal court on their CWA claims, should

they prevail.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

11. Both Fed.R.Civ.P. 65(c) and Ch.Ct. R. 65(c) provide that

[n]o restraining order or preliminary injunction shall issue except

upon the giving of security by the applicant, in such sum as the

court deems proper, for the payment of such costs and damages as

may be incurred or suffered by any party who is found to have been

wrongfully enjoined or restrained.

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