Dotzel v. Ashbridge

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

2-14-2006

Dotzel v. Ashbridge

Precedential or Non-Precedential: Precedential

Docket No. 04-2975

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-2975

NORBERT J. DOTZEL, JR., d/b/a Dotzel Trucking;

JOANNE DOTZEL, d/b/a Dotzel Trucking

v.

ERNEST ASHBRIDGE; JOHN R. BOWER;

DARREN CRISPIN; SALEM TOWNSHIP,

Appellants

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 03-cv-01418)

District Judge: Honorable James M. Munley

Argued May 10, 2005

Before: SLOVITER and FISHER, Circuit Judges,

and POLLAK,* District Judge.

*

The Honorable Louis H. Pollak, United States District

Judge for the Eastern District of Pennsylvania, sitting by

designation.

(Filed February 14, 2006 )

Enid W. Harris

Harris & Van Jura

26 Pierce Street

Kingston, PA 18704

Terry Rice (Argued)

Rice & Amon

Two Executive Boulevard, Suite 301

Suffern, NY 10901

Attorneys for Appellants

Bruce J. Phillips (Argued)

Wetzel, Caverly, Shea, Phillips & Rodgers

15 Public Square, Suite 210

Wilkes-Barre, PA 18701

Attorney for Appellees

OPINION OF THE COURT

FISHER, Circuit Judge.

In this appeal we consider whether the members of the

Board of Supervisors of Salem Township, Pennsylvania are

immune from suits brought against them in their individual

capacities relating to their decision to deny an application for a

permit for a conditional use. We conclude that they are entitled

2

to absolute quasi-judicial immunity. Accordingly, we will

reverse the decision of the District Court.

I.

When reviewing a ruling on a motion to dismiss for

failure to state a claim, we accept the allegations in the

pleadings as true and draw all reasonable inferences in favor of

the plaintiff. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir.

1991). The relevant allegations can be stated briefly. The

Appellants, the defendants below, are Salem Township and the

three members of its Board of Supervisors (“the Board”):

Ernest Ashbridge, John R. Bower, and Darren Crispin. The

Appellees, the plaintiffs below, are Norbert and Joanne Dotzel,

the owners of a trucking business in the Township, who applied

for a permit to operate a “small mining operation” on their land.

Following a hearing in March 2002, the Salem Township

Planning Commission granted conditional approval of the

Dotzels’ application. The Board then held a public hearing on

April 9, 2002, and rejected the application. The Board’s

decision explained that the application was denied because

“[t]he proposed use . . . jeopardize[s] the community

development objectives of the ordinance.” The Dotzels contend

that the Board’s decision was not supported by the evidence

before the Board, but rather was based upon the personal animus

of the individual Board members and other improper motives.

The Dotzels allege that the Board members failed to review

prior to the hearing various submissions accompanying their

permit application; that the Board members ignored the

recommendation of the Township solicitor to delay the hearing

for 120 days; that the Township engineer had advised the

3

Planning Commission to approve the application; that Appellant

Ashbridge based his decision upon an inapplicable provision in

the Township zoning ordinance; and that Appellant Bower’s

brother had a quarry operation that would have been forced to

compete with the Dotzels’ proposed gravel pit.

As was their right under Pennsylvania law, the Dotzels

appealed the permit denial in state court and prevailed, winning

a reversal and an order that the permit be granted. They then

brought suit in the District Court under 42 U.S.C. § 1983 against

the Township and the Board, raising several constitutional

claims, including violations of their First Amendment rights and

their rights to procedural and substantive due process. The

District Court dismissed all but the substantive due process

claim, holding that the state appellate review provided adequate

procedural protection and that the complaint was “devoid of any

allegation that describes or particularizes any protected activity”

under the First Amendment. The Dotzels do not appeal from

those dismissals.

The District Court denied the defendants’ motion to

dismiss the substantive due process claim, however, holding that

discovery was necessary on two issues crucial to municipal

liability: whether the Board’s denial of the Dotzels’ application

was so egregiously illegal as to “shock the contemporary

conscience,” see Desi’s Pizza, Inc. v. City of Wilkes-Barre, 321

F.3d 411, 427 (3d Cir. 2003) (quoting County of Sacramento v.

Lewis, 523 U.S. 833, 847 n.8 (1998)), and whether the Board’s

action constituted “official policy,” see Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 694 (1978).

4

The Board members argued below that regardless of the

merits of the claim against the Township, they are entitled to

quasi-judicial immunity and cannot be sued in their individual

capacities based on their votes. The District Court rejected that

argument, explaining that it was “unable to determine the

capacity” in which the Board members were acting when they

considered the Dotzels’ permit application. The Court therefore

found itself “unable to determine whether the defendants are

protected by judicial immunity,” and denied their motion to

dismiss. On this question, we disagree with the District Court

and will reverse. Analysis of the functions undertaken by the

Board in ruling on permit applications persuades us that the

Board members act in a quasi-judicial capacity and are therefore

entitled to absolute immunity from suit.

II.

We begin, as we must, with an inquiry into whether we

have jurisdiction to consider this appeal under the collateral

order doctrine set forth in Cohen v. Beneficial Loan

Corporation, 337 U.S. 541 (1949), and its progeny. See Lazy

Oil Co. v. Witco Corp., 166 F.3d 581, 587 (3d Cir. 1999) (“[W]e

have an inherent obligation to ensure that we only decide those

cases for which there is a proper ground for appellate

jurisdiction”).

Generally, as an appellate court, we have jurisdiction

only over final orders of district courts as set forth in 28 U.S.C.

§ 1291. A “final order” is one “which terminates the litigation

between the parties on the merits of the case and leaves nothing

to be done but to enforce by execution what has been

5

determined.” Richerson v. Jones, 551 F.2d 918, 922 (3d Cir.

1977) (quoting St. Louis, Iron Mountain and Southern Ry. Co.

v. Southern Express Co., 108 U.S. 24, 28-29 (1883)). The

denial of a motion to dismiss does not end the litigation between

the parties and thus does not normally qualify as a final order

under section 1291. See Petroleos Mexicanos Refinacion v. M/T

King A (Ex Tblisi), 377 F.3d 329, 333-34 (3d Cir. 2004).

However, the Supreme Court in Cohen explained that section

1291 is to be given a “practical rather than a technical

construction,” and that there is a “small class” of non-final

orders “which finally determine claims of right separable from,

and collateral to, rights asserted in the action, too important to

be denied review and too independent of the cause itself to

require that appellate consideration be deferred until the whole

case is adjudicated.” Cohen, 337 U.S. at 546; see also Bell

Atlantic-Pennsylvania, Inc. v. Pennsylvania Public Utility

Comm’n, 273 F.3d 337, 342 (3d Cir. 2003); In re Ford Motor

Co., 110 F.3d 954 (3d Cir. 1997).

The Supreme Court has held that the denial of absolute

immunity is immediately appealable under the Cohen collateral

order doctrine because a finding of immunity constitutes an

entitlement not to stand trial.1 Mitchell v. Forsyth, 472 U.S. 511

(1985); Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982). While

there has been some debate as to the scope of appellate

jurisdiction in absolute immunity cases where fact disputes

persist about the nature of the challenged official function, we

1

Quasi-judicial immunity is absolute immunity. See

Hamilton v. Leavy, 322 F.3d 776, 785 (3d Cir. 2003).

6

have read the Court’s decisions to mean that “an order denying

qualified or absolute immunity, to the extent that the order turns

on an issue of law, is immediately appealable under the

collateral order doctrine.” Giuffre v. Bissell, 31 F.3d 1241, 1245

(3d Cir. 1994). See Hamilton v. Leavy, 322 F.3d 776, 782 (3d

Cir. 2003); Schrob v. Catterson, 948 F.2d 1402, 1406-07 (3d

Cir. 1991); see also Ellis v. The Coffee County Board of

Registrars, 981 F.2d 1185, 1189 (11th Cir. 1993) (citing Harris

v. Deveaux, 780 F.2d 911, 914 (11th Cir. 1986)) (“Absolute

immunity does not depend on good faith or reasonableness; thus

it would be unlikely to find a case where disputed factual

questions precluded review.”).2

2

Other courts of appeals have relied upon whether a

factual dispute exists over the function performed by the

government official to determine whether appellate jurisdiction

exists to review the denial of absolute immunity. Compare

Ellis, 981 F.2d at 1189-90 (holding that the court had appellate

jurisdiction over denial of absolute immunity because any

disputed issues of fact related to the merits of the action, not to

the legal determination whether absolute legislative immunity

was applicable); and Babcock v. Tyler, 884 F.2d 497 (9th Cir.

1989), overruled on other grounds as recognized in Miller v.

Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (concluding that

the court had appellate jurisdiction over denial of absolute

immunity where it was undisputed that the defendants’ actions

took place during agency adjudicative proceedings), with

Lawson v. Abrams, 863 F.2d 260 (2d Cir. 1988) (holding that

the court did not have appellate jurisdiction over denial of

absolute prosecutorial immunity because factual dispute existed

7

Our inquiry into whether quasi-judicial immunity

attaches focuses on the nature of the public official’s job

function, not the merits of the decision made by the official. See

Hamilton, 322 F.3d at 785. Thus, to determine whether we have

jurisdiction over this appeal, we must ask whether the Dotzels’

complaint reasonably alleges that the individual Appellants were

not acting in their capacity as Board members. Although the

complaint alleges that the Board members acted out of animus

and other improper motivations, there is no allegation that any

decision was made by any appellant other than in his capacity as

a member of the Board, or that any decision was made other

than through procedures established by applicable state and local

law. See Pl.’s Compl. ¶¶ 17-27. Accordingly, we have

appellate jurisdiction to consider the appeal.

III.

Our remaining task is to determine whether the functions

performed by the individual appellants were quasi-judicial in

nature. We exercise de novo review over the District Court’s

legal determination that the Board members are not entitled to

quasi-judicial immunity. See Hamilton, 322 F.3d at 782.

As its name suggests, “quasi-judicial” immunity is a

doctrine under which government actors whose acts are

over the nature of the acts the prosecutor performed).

In this case, the question does not arise, because the

complaint does not allege that the defendants acted other than in

their capacity as Board members.

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relevantly similar to judging are immune from suit.

“Quasi-judicial absolute immunity attaches when a public

official's role is ‘functionally comparable’ to that of a judge.”

Hamilton, 322 F.3d at 785. Regardless of his job title, if a state

official must walk, talk, and act like a judge as part of his job,

then he is as absolutely immune from lawsuits arising out of that

walking, talking, and acting as are judges who enjoy the title and

other formal indicia of office. See Omnipoint Corp. v. Zoning

Hearing Bd., 181 F.3d 403, 409 (3d Cir. 1999) (holding that a

zoning board acted in a quasi-judicial capacity when it denied a

conditional use permit).

The Supreme Court has provided guidance on which

features of an allegedly quasi-judicial job function are most

important. See Butz v. Economou, 438 U.S. 478 (1978). Under

Butz, our task is to examine the job function at issue with an eye

toward these features, which have been aptly summarized by the

First Circuit as follows:

First, does a Board Member, like a judge, perform

a traditional “adjudicatory” function, in that he

decides facts, applies law, and otherwise resolves

disputes on the merits (free from direct political

influence)? Second, does a Board member, like a

judge, decide cases sufficiently controversial that

in the absence of absolute immunity, he would be

subject to numerous damages actions? Third,

does a Board member, like a judge, adjudicate

disputes against a backdrop of multiple

safeguards designed to protect [the parties’]

constitutional rights?

9

Bettencourt v. Board of Registration, 904 F.2d 772, 783 (1st Cir.

1990). In Hamilton, supra, we glossed the question succinctly

as “whether the official acted independently and what

procedural safeguards attended his/her decision-making

process.” 322 F.3d at 785. The inquiry goes to the official’s job

function, as opposed to the particular act of which the plaintiff

complains. Thus the relevant decisional material will be the

legal and structural components of the job function, as opposed

to detailed facts about specific acts and mental states. With this

understanding in mind, we will turn to the Butz factors as

enumerated seriatim by the Court in Cleavinger v. Saxner, 474

U.S. 193, 202 (U.S. 1985).

A. The need to assure that the function can be

performed without harassment or intimidation

While this consideration obviously applies to all

government functions, zoning disputes can be among the most

fractious issues faced by municipalities, and the risk of threats

and harassment is great. The monetary stakes are often quite

high, especially in commercial cases like this one, making the

possibility of liability an especially potent adversary of

objectivity. In this respect, the Board looks like a court. We

emphasized this feature of zoning boards in finding quasi-

judicial immunity for a New Jersey zoning board in Bass v.

Attardi, 868 F.2d 45 (3d Cir. 1989), where we noted with

approval the observation of the New Jersey Supreme Court that

the public interest requires that persons serving on

planning boards considering applications for

development act with independence and without

10

fear that developers, who will frequently have

significant financial resources and the ability to

litigate, not bring them into court. The possibility

of facing expensive and aggravating litigation as

a result of making a decision on an application for

development may in a subtle way impact on the

decision making process.

Id. at 50 n.11. These concerns apply equally in the instant case.

B. The presence of institutional safeguards

against improper conduct

Courts have taken a variety of procedural safeguards as

particularly relevant to the judicial status inquiry. The greater

the prevalence of such features, the more the activity looks

judicial.3 See, e.g., Butz, 438 U.S. at 513-14; Bettencourt, 904

F.2d at 783-84; Jodeco v. Hamm, 674 F. Supp. 488, 497-98

3

Of course, institutional safeguards typically attend

legislative acts, too. Legislative actors, like judicial actors, are

entitled to absolute immunity. Tenney v. Brandhove, 341 U.S.

367 (1951). Most executive officers, by contrast, are entitled to

only qualified immunity, under which they can be sued for acts

which are clearly illegal – in other words, which a reasonable

officer would have known were illegal. Harlow v. Fitzgerald,

457 U.S. 800, 817-18 (1982). While a municipal zoning board

could conceivably encompass all three sorts of functions, in this

case it is clear to us that the challenged actions are within the

heartland of judicial activity.

11

(D.N.J. 1987). In this case, many such safeguards are present

and required by law. The local ordinance provides for notice to

the parties and the public, Salem Township Zoning Ordinance,

§ 1506 A, B; public hearings, id. § 603 B; specific procedures

for conducting hearings, id. § 603 C; the right to counsel, id.

§ 1506 G; the use of subpoenas and oaths, id.; the issuance of

written decisions, id. § 1506 K; and the preparation of

transcripts, id. § 1506 I.

C. The degree of insulation from political

influence

Like judges and unlike most executive officers, the board

members here were removable during their terms only for cause.

They were elected, but so are most of the nation’s judges; and

many appointed officials are highly susceptible to political

influence, which is generally exercised in the form of summary

dismissal. Whether an official is elected or appointed is not in

itself probative of anything at all in the “acts like a judge”

analysis; the devil is always in the details. The key question for

our inquiry is therefore whether the Board members here can be

removed from office based on the substance of their official

work. They cannot. Under the Pennsylvania Constitution, “[a]ll

civil officers elected by the people, except the Governor, the

Lieutenant Governor, members of the General Assembly and

judges of the courts of record, shall be removed by the Governor

for reasonable cause, after due notice and full hearing, on the

address of two-thirds of the Senate.” Pa. Const. Art. 6 § 7. The

Pennsylvania Supreme Court, in In re Reese, 665 A.2d 1162 (Pa.

1995), interpreted this provision to provide the exclusive means

of removal for all elected officials in the state, and to preempt

12

any other removal mechanism. Thus a mayoral recall petition

was invalidated under Article 6. Id. at 1167. In this case, the

constitutional limit on removal serves to substantially insulate

the Board from political pressure.4

D. The use of precedent in resolving controversies

We take the relevant question here to be whether the

Board’s decisions are purely discretionary, or are constrained by

outside law. Thus, though it is not clear to what extent the

Board refers to its own prior determinations in reaching

decisions, the Board is required by statute to consider in its

deliberations the land-use standards set out in the relevant

zoning ordinance, and to explain its reasoning in written

opinions. 53 Pa. Stat. Ann. § 10913.2 (“The governing body

shall render a written decision . . . accompanied by findings of

fact or conclusions based thereon, together with any reasons

therefor. Conclusions . . . shall contain a reference to the

provision [of law] relied on and the reasons why the conclusion

is deemed appropriate in the light of the facts found.”). This

procedure is quintessentially judicial.

E. The adversarial nature of the process

4

Indeed, under Article 6, if the Board members here had

been appointed, they would not have enjoyed such protection

from summary termination: “Appointed civil officers, other

than judges of the courts of record, may be removed at the

pleasure of the power by which they shall have been appointed.”

Pa. Const. Art. 6 § 7.

13

The Board’s cases are adversarial as a matter of law. The

zoning ordinance requires that all interested parties be given

notice and an opportunity to appear and be heard, Salem

Township Zoning Ordinance, § 603 B, F; prohibits board

members from all ex parte contacts, § 603 J, and from inspecting

the disputed site unless all parties are given an opportunity to

attend, id.; and provides for cross-examination of witnesses and

challenges to the relevance of proffered evidence, § 603 G, H.

These are hallmarks of adversarial proceedings.

F. The availability of appellate review

A formal appellate procedure is probably the single most

court-like feature a governmental body can have. Many of the

safeguards listed above, for example the issuance of written

decisions and preparation of transcripts, exist largely to facilitate

appellate review. And it is a hallmark of courts, unlike

legislatures and executives, that (with one exception) they do not

consider themselves to be either final or infallible. Thus it is

with the Board. By statute, its decisions are appealable as of

right in the Court of Common Pleas. 53 Pa. Stat. § 11002-A. In

the instant case, in fact, the plaintiffs, on appeal in that court,

secured a reversal of the Board’s ruling. The features of the

process that allowed the plaintiffs to pursue their appeal now

immunize the Board members from this suit: precisely because

that remedy was open to them, this one is closed.

We conclude that the District Court’s reluctance to

decide the question of immunity was excessively cautious. The

Board members here were acting in a quasi-judicial capacity,

and are absolutely immune from suit in their individual

14

capacities. Any actions against them in their individual

capacities must therefore be dismissed.5

IV.

We do not hold that the mantle of quasi-judicial

immunity is to be draped indiscriminately upon the shoulders of

every municipal board of supervisors or like entity. Rather, we

must closely and carefully examine the functions performed by

the board in each case and apply the factors indicated by the

Supreme Court, as we have done here. For the reasons set forth

above, we conclude that Appellants are entitled to quasi-judicial

immunity. Accordingly, we will reverse the decision of the

District Court and remand for further proceedings consistent

with this opinion.

5

The remaining substantive due process claim against the

Township and the Board members in their official capacities is

not affected by our decision in this appeal. The substantive due

process claim against the Board members in their official

capacities “is, in all respects other than name, to be treated as a

suit against the entity.” Bass, 865 F.2d at 51 (quoting Kentucky

v. Graham, 473 U.S. 159, 166 (1985)). The Township, as a

municipal entity, is not entitled to any form of immunity. Id.

(citing Aitchinson v. Raffiani, 708 F.2d 96, 100 (1983); Owen v.

City of Independence, 445 U.S. 622, 657 (1980)).

15