                                                                                                                           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Precedential or Non-Precedential: Precedential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.

                                8
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
