MARTINSBURG – United States District Judge Gina M. Groh has dismissed a constitutional claim brought by husband and wife plaintiffs against the town of Shepherdstown because all of the state claims on which the federal claim depended had already been dismissed.

Donald and Patricia Burgess had originally filed suit in the Circuit Court of Jefferson County on Nov. 7, 2011, seeking relief for alleged improper enactment and enforcement of the building code of the Corporation of Shepherdstown.

The petition contained seven counts, as described in the opinion:

“Count I seeks a writ of mandamus compelling the Respondents to permit the Petitioners to complete renovations on property within the corporate boundary, to remove a section from the Codified Ordinances, and to revoke any authority to administer a section of the building code.

“Count II seeks a writ of mandamus compelling the issuance of a building permit. Count III seeks a writ of mandamus compelling the Corporation of Shepherdstown to issue written confirmation that the subject property is exempt from the business license requirement.

“Count IV seeks a writ of mandamus compelling issuance of a business license. Count V seeks a writ of prohibition prohibiting the Corporation of Shepherdstown from enforcing the zoning ordinance on the basis that the same was improperly adopted.

“Count VI seeks an injunction and a writ of mandamus requiring the Corporation of Shepherdstown to prohibit the destruction or deletion of e-mails, require disclosure of certain e-mails, and require compliance with a state law freedom of information act request.

“Count VII contains a claim under 42 U.S.C. §1983, and is the only claim for which a jury trial is demanded.”

Because of the §1983 claim, the city removed the case to federal court. Groh found that the state law issues “clearly predominate over the §1983 claim, which is wholly dependent upon a favorable ruling on the state law claims,” and it remanded Counts I-VI back to the state court.

On June 15 and June 22, the circuit court conducted an evidentiary hearing on those claims, denied the relief requested, and dismissed with prejudice Counts I-VI of the Petition.

A subsequent motion for a new trial was denied by the circuit court on Sept. 18, and the city then moved the federal court to dismiss the only remaining count, Count VII.

Groh wrote, “The Petitioners’ §1983 claim is completely premised on the Petitioners’ six state law claims. In Count VII of their Petition, the Petitioners allege that “[p]ursuant to the Fifth and Fourteenth Amendments to the Constitution of the United States, the Petitioners are entitled to due process before they can be deprived of their... property interests, which due process they have been denied.

“However, the extent of the Petitioners’ property interests was determined by the state court, which dismissed the Petitioners’ claims. Without a finding in the Petitioners’ favor on the issue of property interests, the Petitioners cannot prevail on their federal due process claim. There is simply no way for the Court to decide these matters without relitigating issues already decided by the state court.

“Such being the case, the Court finds that the Petitioners’ remaining §1983 claim must be dismissed at this time. All of the underlying state law claims on which the Petitioners’ §1983 claim is premised have been dismissed with prejudice by a state court having jurisdiction of both the subject matter and the parties.”

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