wordsworth

Yesterday, while making two pots of stew and imagining a normal life, I listened to some recent oral argument before the Eleventh Circuit. One case was Ficken v. Dunedin. The other was Alvarez v. School Board of Miami-Dade. Former Florida Supreme Court Justice Luck, from south Florida, was on both panels. During the Ficken argument the very energetic Judge Luck made it very clear he understood the difference between direct appeal of a code enforcement board order and certiorari review of a board of county commissioners order. During the Alvarez argument the nearly ferocious Judge Luck repeatedly claimed the Eleventh Circuit in Corn v. City of Lauderdale Lakes (Corn III of IV) made it clear that a violation of state law did not give rise to a substantive due process claim.

Oddly, I had just spent part of my morning re-reading the Corn decisions and Corn III did make me wonder if I’d overlooked it in 2012. Did Corn III mean that the County’s violation of Article IV, Section 9, Fla.Const., could not ground a claim in substantive due process? Was that clearly established at the time? If so, why didn’t Judge Dalton or the Eleventh Circuit say so?

Corn III quotes the Eleventh’s decision in Greenbriar v. City of Alabaster:

The fact “that town officials are motivated by parochial views of local interests which work against plaintiffs’ plan and which may contravene state subdivision laws” … does not state a claim of denial of substantive due process.

Corn borrows this from Coniston v. Village of Hoffman Estates at 467 (7th Circuit, Posner), which Posner borrowed from Creative Environments v. Estabrook (1st Circuit).

Posner say a lot in Coniston. He says a lot more than he needs to say to address the issues of the case. In fact, it seemed to me that he was writing the opinion for the Justices of the U.S. Supreme Court.

In the end, Coniston was not about a local board violation state law; it was about the “political pressure” of the unhappy neighbors of the proposed development. Corn was about “political pressure.” As was Greenbriar and Creative Environments. None were about a clear violation of the separation of powers defined by the state constitution.

Craig Frager represented Alvarez. He didn’t have good cases. But neither did the Eleventh.

In Herbert v. Louisiana, cited by Posner, the Supreme Court says:

Whether state statutes shall be construed one way or another is a state question, the final decision of which rests with the courts of the State. The due process of law clause in the Fourteenth Amendment does not take up the statutes of the several States and make them the test of what it requires; nor does it enable this Court to revise the decisions of the state courts on questions of state law. What it does require is that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as “law of the land.”

In Kompare v. Stein, cited by Posner, the Supreme Court says:

The constitutionality of the defendant’s conduct cannot be determined by looking to a municipal ordinance. Section 1983 only creates a federal cause of action “against those acting under color of state law who cause a `deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States].’ 42 U.S.C. § 1983.” Street v. Surdyka, 492 F.2d 368, 371 (4th Cir.1974) (emphasis added). As we have said before, “[i]n many cases the same conduct will violate both state law and the federal Constitution, but certainly not all violations of state law rise to the level of constitutional tort.” Id.; Gramenos v. Jewel Companies, 797 F.2d 432, 434-35 (7th Cir.1986). Many state statutes establish rights and procedures not required by the Constitution. Lojuk, 770 F.2d at 629. Similarly, violations of municipal ordinances are not necessarily of constitutional import.

It does not help the plaintiffs that they have couched their argument in Fourteenth Amendment terms, i.e., that violation of the municipal ordinance is per se a violation of due process and thus gives rise to a cause of action under § 1983. Plaintiffs’ argument fails because “violation of state law …, without more, is not a violation of the federal right to procedural due process.” Miller v. Carson, 563 F.2d 757, 760 n. 7 (5th Cir.1977); Screws v. United States, 325 U.S. 91, 108-09, 65 S.Ct. 1031, 1038-39, 89 L.Ed. 1495 (1945). Violations of state statutes or municipal ordinances do not necessarily give one a cause of action under § 1983, nor do they necessarily state a violation of the due process clause.

In Casper v. Board of Election, cited by Posner, Judge Easterbrook of the 7th Circuit says:

The district court has no supervisory powers and no authority to instruct the Board how to follow state law. A violation of state law does not state a claim under § 1983; we have rejected such contentions repeatedly, e.g., Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 434-35 (7th Cir.1986), and just the other day we held a claim of this character so feeble that it justified an award of attorneys’ fees on the court’s initiative. Weinstein v. University of Illinois, 811 F.2d 1091, 1097-98 (7th Cir.1987). That this case involves elections does not matter. Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944), holds that a deliberate violation of state election laws by state election officials does not transgress against the Constitution. See also, e.g., Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 516 (1913); Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737 (1904); Grano v. Barry, 733 F.2d 164, 169 (D.C. Cir.1984). More, whether or not the Board is “the state”, so that the eleventh amendment forbids resort to state law as the basis of decision, see Citizens for John W. Moore Party v. Board of Election Commissioners, 781 F.2d 581, 584-86 (7th Cir.1986) (dissenting opinion; the majority did not resolve the Board’s status), a federal court must exercise restraint in upbraiding an organ of state government for infidelity to state law. “[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984). See also Huggins v. Isenbarger, 798 F.2d 203, 208-09 (7th Cir.1986) (concurring opinion); Grano, 733 F.2d at 169 (“Vindication of state policy ought, as an initial matter, to take place in state courts”).

There isn’t time today to follow up on all of this. But the last quote’s reference to Barney did cause me to go back to the last few pages of our first petition to the U.S. Supreme Court. There we distinguish Barney as a claim brought directly under the Fourteenth Amendment.