wordsworth

One of our arguments is that the Ninth Circuit “failed to even acknowledge the existence of the constitutional principle upon which [we] based [our] claims.” One of those principle is that the constitutional meaning of property is any “legitimate claim of entitlement.”

The Ninth Circuit in our case (Doc.34-13, p.3) said that we had no property right to a state issued permit (“[T]he only ‘right’ that Plaintiffs claim is Mr. Foley’s state-issued permit, which is not a property right. Hernandez v. Dept. of State, Div. of Licensing, 629 So. 2d 205, 206 (Fla. 3d DCA 1993)). There are a lot of ways to attack this. But I keep looking for the best way.

Last night I googled federal cases for the phrase “permit confers.” So, I collected some cases and put them in a folder with that title.

That search lead me to Winkler v. County of DeKalb, 648 F.2d 411 (5th Cir. June 10, 1981). The date Winkler was decided is important because the 5th Circuit established binding precedent up to the date the Eleventh Circuit was created October 1, 1981. And Winkler did what the Eleventh Circuit requires – he exhausted his state court remedies before making his procedural due process claim in federal court.

Winkler says this:

“Although the underlying substantive interest is created by ‘an independent source such as state law,’ federal constitutional law determines whether that interest rises to the level of a `legitimate claim of entitlement’ protected by the Due Process Clause.” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978) (citations omitted). Accord, Thompson v. Bass, 616 F.2d 1259, 1265 (5th Cir.), cert. denied, ___ U.S. ___, 101 S.Ct. 399, 66 L.Ed.2d 245 (1980); LaBauve v. Louisiana Wildlife and Fisheries Commission, 444 F.Supp. 1370, 1378-79 (E.D.La.1978) (3-judge panel) … [T]he state may not magically declare an interest to be ‘non property’ after the fact for Fourteenth Amendment purposes if, for example, a longstanding pattern of practice has established an individual’s entitlement to a particular governmental benefit.” Quinn v. Syracuse Model Neighborhood Corporation, 613 F.2d 438, 448 (2d Cir. 1980).