Antonio Santasucci v. Hugh Gallen, 607 F.2d 527, 1st Cir. (1979)

607 F.
2d 527
Antonio SANTASUCCI et al., Plaintiffs-Appellants,

v.
Hugh GALLEN et al., Defendants-Appellees.
No. 79-1254.
United States Court of Appeals,

First Circuit.
Argued Sept. 14, 1979.
Decided Oct. 18, 1979.
Jan Richard Schlichtmann, Newburyport, Mass., with whom E. Douglas

Bolick, Newburyport, Mass., was on brief, for plaintiffs, appellants.
John C. Boeckeler, Asst. Atty. Gen., Concord, N. H., with whom Thomas
D. Rath, Atty. Gen., Concord, N. H., was on brief, for defendants,
appellees.
R. Carl Anderson, Concord, N. H., with whom Sulloway, Hollis & Soden,
Concord, N. H., was on brief, for defendants, appellees Public Service
Company of New Hampshire and Properties, Inc.
Before KUNZIG, Judge, U. S. Court of Claims,* CAMPBELL, Circuit
Judge, and DOOLING, District Judge.**
LEVIN H. CAMPBELL, Circuit Judge.
Appellants brought suit in the district court asserting a constitutional right to

march and demonstrate on certain lands and ways in the town of Seabrook,
New Hampshire. These form part of the construction site of a nuclear power
facility being built by Public Service Company of New Hampshire (PSC), a
private corporation. Appellants asked the district court for a declaration that the
property in question had never validly been conveyed from the town to PSC,
and for an injunction preventing state and town officials from interfering with
appellants' asserted first amendment right to use the land, including a road, for
peaceful demonstrations. Acting under the doctrine of abstention, the district
court dismissed the action, indicating it felt the state law issues involved in
ascertaining who owned the disputed site could best be decided in the state
court. The district court also denied appellants' motion to certify the legal
questions to the New Hampshire Supreme Court, ruling that the factual issues
underlying the land claims ought to be determined at the trial court level.
2
We recognize that abstention by a federal court from the exercise of its proper
jurisdiction "is the exception, not the rule." Colorado River Water Conservation
District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483
(1976). As Colorado River indicates, the doctrine of abstention has been
confined to three narrowly defined types of cases. Although there is some truth
to the district court's finding of similarities between the present case and each of
the three strands of the abstention doctrine, we think the principle derived from
Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct.
643, 85 L.Ed. 971 (1941), most closely fits this action. This principle, as
summarized in Harris County Commissioners Court v. Moore, 420 U.S. 77, 95
S.Ct. 870, 43 L.Ed.2d 32 (1975), states that "when a federal constitutional
claim is premised on an unsettled question of state law, the federal court should
stay its hand in order to provide the state courts an opportunity to settle the
underlying state-law question and thus avoid the possibility of unnecessarily
deciding a constitutional question." Id. at 83, 95 S.Ct. at 875. See also County
of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 113, 3
L.Ed.2d 103 (1959); Field, Abstention in Constitutional Cases: The Scope of
the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071 (1974).
Here, appellants' claim turns entirely on the interpretation of state law. If

conveyance of the lands in question to PSC was valid, so that the land is now
private property, appellants can make no credible federal claim that they have a
right to enter the site.1 See Lloyd Corp. v. Tanner,407 U.S. 551, 92 S.Ct. 2219,
33 L.Ed.2d 131 (1972); Cf. Hudgens v. NLRB,424 U.S. 507, 96 S.Ct. 1029, 47
L.Ed.2d 196 (1976). On the other hand, if the land is still owned by the town of
Seabrook which has issued a valid parade permit for appellants' demonstration
there would presumably be little doubt that PSC could not exclude appellants
by invoking state trespass remedies. See Hague v. CIO, 307 U.S. 496, 59 S.Ct.
954, 83 L.Ed. 1423 (1939).
Appellants' claim that title to these lands never properly passed to PSC rests on
a number of unsettled propositions of state law. Among these are the questions
whether a prescriptive way can be discontinued by vote of the town without
court approval, whether a vote of a "special" town meeting is adequate to
approve the sale of tax-title property, and whether a "sale" of town land can
occur without a transfer of cash. The district court concluded that these and
other issues, raised by appellants to demonstrate that the land is public,
implicated "points which the Court's review of New Hampshire law satisfies it
are far from settled therein." We are persuaded that the district court was
accurate in its perception, and the exercise of its discretion to abstain for an
authoritative construction of state law was entirely justified.
5
While not essential to our decision, two other factors bolster our conclusion that
the district court's decision to abstain was proper. First, the questions of state
law raised here relate to subjects of special local concern: title to land and the
validity of property conveyances by town authorities. Second, apart from other
potential state remedies which undoubtedly exist, an ongoing action in the state
Superior Court provides appellants with a ready forum for resolution of their
claims. See Harris County Commissioners, supra, 420 U.S. at 83, 95 S.Ct. 870.
The Superior Court, at the request of PSC, has issued an injunction prohibiting
certain named individuals and other persons from conducting demonstrations
on the construction site at Seabrook. Implicit in the Superior Court's order is
the premise that the property in issue is properly owned by PSC's real estate
subsidiary, Properties, Inc. The record reflects that permission has already been
granted to one of the co-plaintiffs in the district court action to intervene in the
Superior Court proceeding to raise these issues.
Finally, we think the district court's decision to refrain from ordering

certification was reasonable. Underlying the many difficult legal issues relating
to the land claims are a number of disputed factual issues.2 The fact that
appellants were unable, either before the district court or at oral argument, to
formulate a concise set of legal questions for disposition by the Supreme Court
of New Hampshire reinforces our conclusion that this case should proceed
through the normal state court system for a resolution of the property questions,
with the district court retaining jurisdiction to provide appropriate constitutional
relief if the need arises.
Affirmed.
Sitting by designation
**
Of the Eastern District of New York, sitting by designation
Appellants' claim to a federal common law right to traverse private property to

reach the ocean is frivolous in the circumstances of this case. Compare United
States v. Harrison County, 399 F.2d 485 (5th Cir. 1968), Cert. denied, 397 U.S.
918, 90 S.Ct. 925, 25 L.Ed.2d 99 (1970)
We do not agree with appellants' assertion that the facts must be assessed as
stated in the complaint. We do not accept this contention any more than we
agree that the applicable New Hampshire law is clear or that the essential facts
are uncontroverted

Antonio Santasucci v. Hugh Gallen, 607 F.2d 527, 1st Cir. (1979)

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607 F.

Antonio SANTASUCCI et al., Plaintiffs-Appellants,

United States Court of Appeals,

Jan Richard Schlichtmann, Newburyport, Mass., with whom E. Douglas

Appellants brought suit in the district court asserting a constitutional right to

Here, appellants' claim turns entirely on the interpretation of state law. If

Finally, we think the district court's decision to refrain from ordering

Of the Eastern District of New York, sitting by designation

Appellants' claim to a federal common law right to traverse private property to

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