1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/172
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. 

 35