J. Cormack v. Candice Settle-Beshears

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2069
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J. Michael Cormack, *
*
Plaintiff - Appellant, *
*
v. *
*
Candice Settle-Beshears, individually *
and in her official capacity as City * Appeal from the United States
Attorney; City of Van Buren, Arkansas, * District Court for the Western
a municipality and political subdivision; * District of Arkansas.
Wesley Sandlin, VBPD Officer, Badge *
#480, in his official and individual *
capacity; Chris Hoffsomer, VBPD *
Officer, Badge #429, in his official *
and individual capacity, *
*
Defendants - Appellees. *
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Submitted: December 13, 2006
Filed: January 23, 2007
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Before LOKEN, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.

J. Michael Cormack commenced this § 1983 action against the City of Van
Buren, Arkansas and several of its employees, alleging that his constitutional rights
were violated when Van Buren annexed his land and applied a city ordinance to
prohibit fireworks from being sold on it. The district court1 granted the defendants'
motion to dismiss all claims, and Cormack appeals. We affirm.

Cormack owns property on which he has been operating a golf driving range.
In 1999 he entered into a written lease agreement allowing part of his property to be
used for the sale of fireworks to the general public between June 20 and July 5 of
every year. The lease was to run for ten years, after which it could be extended for
another twenty. The lessee paid Cormack a flat fee as well as a percentage of the
firework sales. Cormack's property was outside the Van Buren city limits until
September 2004, when the city council of Van Buren enacted an ordinance annexing
various parcels of unincorporated property within the city boundaries. Cormack
alleged in his complaint that he received no notice from the city that it was
considering annexation and that he only became aware of the possible annexation
when a local television reporter told him about it. Despite Cormack's opposition, the
city annexed his property.

In June 2005 the tent from which the fireworks were to be sold was again
erected on Cormack's land. The city ordinance prohibiting the sale of fireworks
provided that a violation of the ordinance was a misdemeanor punishable by a fine.
On June 13 appellee Wesley Sandlin, Van Buren's code enforcement officer, went to
Cormack's property and told him to take the tent down. Cormack asked why and
Sandlin replied, "Only the mayor of Van Buren can approve this." When the mayor
was contacted, he referred all inquiries to the city attorney, appellee Candice Settle-
Beshears. She told Cormack's lawyer that the "building code" prohibited the sale of
fireworks. The next day the lawyer faxed a letter to Settle-Beshears and the mayor of
Van Buren maintaining that under the takings clause of the Constitution Van Buren
could not restrict Cormack's sale of fireworks and stating that Cormack would begin
selling fireworks on June 20.

1
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.

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 On June 17 Settle-Beshears informed Cormack's counsel that she would direct
code enforcement to "shut the business down" if he went ahead with his plans. Police
officers Sandlin and Chris Hoffsomer went to Cormack's property on June 20 and
cited him for violating the city ordinance. Cormack's complaint alleges that the
officers shut down his business "upon threat of arrest and deprivation of civil liberty."
At oral argument counsel stated that the officers wrapped police tape around the
fireworks tent and told Cormack they would arrest him if he removed the tape.
Cormack contested his citation in state court and was found guilty in a criminal
proceeding in municipal court. He appealed, and the case is still pending before an
Arkansas district court.

On the same day that Cormack was cited for violating the city ordinance, he
filed a complaint in federal district court under 42 U.S.C. § 1983, alleging violations
of his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the
Constitution. The district court dismissed all of plaintiff's claims against the city. It
ruled that it could not consider Cormack's claims under the Fifth and Fourteenth
Amendments because Cormack had not exhausted his remedies under state law. It
dismissed his Fourth Amendment claim without prejudice under Younger v. Harris,
401 U.S. 37 (1971), and his First Amendment claim for failure to state a valid claim.
Holding that the individual defendants were entitled to qualified immunity, the court
also dismissed plaintiff's claims against them. Cormack appeals. We review the grant
of a motion to dismiss de novo, taking all well pleaded factual allegations in the
complaint as true and making all reasonable inferences in favor of the plaintiff.
Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).

Cormack has not raised any First Amendment argument on appeal so it is
waived, see Hacker v. Barnhart, 459 F.3d 934, 937 n.2 (8th Cir. 2006), and we turn
to his claim under the Fifth Amendment. He argues that Van Buren's annexation of
his property and enforcement of its ordinance prohibiting the sale of fireworks
amounted to a regulatory taking. Although under Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985),

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federal courts are barred from considering the merits of a takings claim until a private
litigant exhausts state remedies, Cormack believes that an exception applies to this
case. If a state's remedies are inadequate or unavailable, exhaustion is not required,
see id. at 196-97, and Cormack claims that Arkansas has no remedy which would
adequately compensate him for the taking.

This exception to Williamson County is narrow, and the claimant bears the
"heavy burden" of showing that the state remedy is inadequate. Deniz v. Municipality
of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002). We have been unable to find a case
in which this court has declared a state's inverse condemnation procedures to be
inadequate, and in Collier v. City of Springdale, 733 F.2d 1311 (8th Cir. 1984), we
held that Arkansas provides adequate mechanisms for its citizens to be justly
compensated for takings. See id. at 1316-17.

At oral argument counsel for Cormack contended that case law since
Collier demonstrates that Arkansas state remedies are inadequate, but he did not say
how the regulatory takings jurisprudence of Arkansas is inconsistent with the Supreme
Court's leading decisions, let alone demonstrates that Arkansas courts provide less
constitutional protection than the federal courts. While the Arkansas Supreme Court
phrases its evaluation of takings claims differently from the United States Supreme
Court, there is simply no indication that Arkansas gives landowners less protection
than "the federal baseline." Kelo v. City of New London, 125 S. Ct. 2655, 2668
(2005).

Cormack next argues that the way in which the city annexed his land violated
the Fourteenth Amendment by failing to provide him with due process before the
annexation. He claims that he was not given notice of the contemplated annexation
fifteen days before the Van Buren city council's hearing on the annexation ordinance
as required by Arkansas law. See Ark. Code Ann. 14-40-502(b). He also claims that
when he attended the hearing he was never told that the sale of fireworks would be
prohibited if his property were annexed.

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 We assume as we must, see Westcott, 901 F.2d at 1488, that the city council
failed to provide Cormack the notice which is required by Arkansas law. This
violation of Arkansas law does not offend the federal Constitution, however, because
"a sovereign vested with the power of eminent domain may exercise that power
consistent with the constitution without providing prior notice, hearing or
compensation so long as there exists an adequate [postdeprivation] mechanism for
obtaining compensation." Collier, 733 F.2d at 1314. Because Cormack has not
shown that Arkansas lacks an adequate postdeprivation mechanism to provide him
with just compensation for the alleged taking, his due process claim must fail.

Cormack contends that the city violated his Fourth Amendment rights when its
agents issued him a citation for selling fireworks on his property and put up police
tape on the fireworks tent and threatened him with arrest if he removed the tape. The
district court abstained under Younger v. Harris from exercising jurisdiction over this
claim. Younger abstention is appropriate when (1) the federal action would disrupt
an ongoing state judicial proceeding (2) which implicates important state interests and
(3) which provides an adequate opportunity to raise constitutional challenges.
Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432
(1982). Here, the state criminal proceedings against Cormack are still pending before
an Arkansas district court in which he can presumably raise the Fourth Amendment
in defense. In these circumstances abstention is appropriate. Moreover, state interests
in land use regulation may also be implicated in that case. See Night Clubs, Inc. v.
City of Fort Smith, 163 F.3d 475, 480 (8th Cir. 1998).

Lastly, Cormack argues that the district court erred when it found that appellees
Settle-Beshears, Sandlin, and Hoffsomer were entitled to qualified immunity. We
need not reach this point since Cormack's takings claim against all the appellees is not
yet ripe. His due process claims against the individual appellees should be dismissed
because Cormack's complaint fails to allege that they participated in the acts which he
alleges were unconstitutional. With respect to the Fourth Amendment claims against
these appellees, there is no need to reach the qualified immunity issue because we

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have concluded that Younger abstention was proper. See Warmus v. Melahn, 62 F.3d
252, 257 (8th Cir. 1995), vacated on other grounds, 517 U.S. 1241 (1996).

We conclude that the district court properly dismissed Cormack's complaint and
accordingly affirm its judgment.

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