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).

One reason to amend the complaint is to remove the consequence of including the Ninth Circuit orders within the “four corners” of the complaint. As things stand now it is possible for the other side to say that because the orders are referenced (and consequently included) in the complaint all that is said in those orders must be accepted as true. That is a problem because one thing those orders say is that our amended complaint in state court contained no allegations of “bad faith.” Of course, that is incorrect. But if the order is accepted as true (because it is incorporated in the complaint), then we can not challenge it.

These thoughts were prompted by listening to oral argument in Chabad Chayil, Inc.  v. School Board of Miami-Dade County, No. 21-10619 (11th Cir. Sept. 8, 2022). The underlying case was Chabad Chayil, Inc.  v. School Board of Miami-Dade County, Civil Action No. 20-21084-Civ-Scola (S.D. Fla. Jan. 5, 2022).

Chabad cites Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). Speaker states:

If matters outside the pleadings are presented by the parties and considered by the district court, the Rule 12(b)(6) motion must be converted into a Rule 56 summary judgment motion. Fed. R.Civ.P. 12(d). This Court, however, has recognized an important qualification to this rule where certain documents and their contents are undisputed: “In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir.2010); see also Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir.1999) (stating that “a document central to the complaint that the defense appends to its motion to dismiss is also properly considered, provided that its contents are not in dispute”). In its order, the district court relied upon Defendant CDC’s supporting exhibits and its “statement of material facts about which there is no genuine dispute” derived in part from those exhibits. Because the materials relied upon by the district court are not disputed (at least at this juncture),^[8] and because they are central to Plaintiff’s claim, we similarly incorporate their contents to determine whether Speaker has alleged sufficient facts to state a claim

Chabad also cites Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007). Griffin states:

Although Griffin’s complaint makes the conclusory allegation that it is similarly situated to American Proteins in all relevant ways, the exhibits attached to the complaint plainly show that this is not the case. Our duty to accept the facts in  the complaint as true does not require us to ignore specific factual details of the pleading in favor of general or conclusory allegations. Indeed, when the exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern. See Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.1974) (“Conclusory allegations and unwarranted deductions of fact are not admitted as true, especially when such conclusions are contradicted by facts disclosed by a document appended to the complaint. If the appended document, to be treated as part of the complaint for all purposes under Rule 10(c), Fed.R.Civ.P., reveals facts which foreclose recovery as a matter of law, dismissal is appropriate.” (citation omitted)); Simmons, 113 F.2d at 813 (“Where there is a conflict between allegations in a pleading and exhibits thereto, it is well settled that the exhibits control.”).

In Simmons the court said:

Appellant now argues that, under Rule 8, it takes very little to state a valid claim, and says all that is needed is a short and plain statement showing that the pleader is entitled to relief. We heartily agree to this, and, if appellant had practiced accordingly, much labor might have been saved; but this course was not followed, even as to amendments made after the new rules became effective. No exhibits were ever stricken from the complaint, although the court below urged the plaintiff’s counsel to indicate definitely each and every part of the exhibits relied upon as making a contract. In response to this, there was a further amendment presented by which twenty-one of the twenty-four exhibits, formerly a part of the petition, were reasserted in abbreviated form. In a brief accompanying the amendment, appellant’s counsel indicated that “all the letters attached to the amendment” either made the contract or showed that one had been made. The court below held that these letters not only did not show an express contract, but refuted the inference of an implied one.

This is not a case where the plaintiff has pleaded too little, but where he has pleaded too much and has refuted his own allegations by setting forth the evidence relied on to sustain them. The appellant was not content to make a short and plain statement of the facts, but undertook to plead evidentiary facts in detail. The motion to dismiss admits these facts to be true, but denies their legal effect. The court below held that the written correspondence, submitted by appellant, made it clear that there was no liability under either count. Where there is a conflict between allegations in a pleading and exhibits thereto, it is well settled that the exhibits control.

So, at this point, to go beyond Allen v. McCurry and beef up a “no full and fair opportunity” argument, we could – even without amendment – still argue that the Ninth Circuit finding of no “bad faith” is still in dispute. Or, we could amend to squarely dispute the finding.

As the court said in Chabad, by reference to Newton v. Duke Energy Fla., LLC, 895 F.3d 1270, 1277 (11th Cir. 2018), and Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999):

[A] plaintiff wishing to amend its complaint must file a separate motion for leave to amend and either set forth the substance of the proposed amendment or attach a copy of the amended pleading.

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.

Did you read our materials before the hearing?
Did you contact FWC?
Did you discuss FWC and our issue with anyone before our hearing?
Did the County supply you with guidelines for constitutional challenges?
What did you know about the CEB case?

There are a few things on my mind this morning.
One is “the same nucleus of operative fact.” That is the defendants’ res judicata attack; they claim the federal case is barred because it involves “the same nucleus of operative fact.”
So, it is important to explore how that phrase is actually used in Florida cases, and in federal cases in Florida. In particular, it is important to explore how they use the phrase in Takings and in Procedural Due Process cases. One of those cases is Koziara v. City of Casselberry.
“An “operative” fact is one that “constitutes the transaction or event on which a claim or defense is based.” BLACK’S LAW DICTIONARY 670 (9th ed. 2009)” Turnage v. General Motors LLC, Dist. Court, SD Mississippi 2017.
Not too helpful; operative and predicate facts still sound like the same thing to me. So, we still rely on the necessary predicate of a final state-court decision as the fact that distinguishes the federal and state cases.

Lanosa’s strategy may be revealed best by her objections at deposition – they appear to be calculated to avoid disclosing key elements of our case.

One concern she expressed during the Hossfield deposition was the Fifth District’s affirmance of the BCC decision. Her assumption appeared to be that we were asking Hossfield questions that challenged the Fifth District’s decision. Oddly, at the end of the deposition she gets to the answers that we were really after – Hossfield would considered an "intended" use in reaching a decision on a permit.

Steven G. Mason, of Law Office of Steven G. Mason, P.A., Altamonte Springs.

This is the attorney for Rachel’s in OC Food & Beverage, LLC v. Orange County. He will understand our argument regarding Article VIII, Section 1 (j), Florida Constitutioin.

Jesse Clark and I spoke at length. It is still unclear to me whether or not he ever had a hearing before the Code Enforcement Board. But it is quite clear that he believes he was denied a permit by the Board of County Commissioners because Comm. Edwards wanted to punish him for finishing the garage after being notified by Code Enforcement that he was in violation of the code for starting the garage without a permit. I did not ask if Code Enforcement had issued a violation notice or a stop work order. And I don’t know if they even issue, or have the authority to issue, stop work orders.

I can request a new determination. Or, I can include in interrogatories any questions that I would put in a determination. Or, both … Both!

Got a call from Vera Clark’s son Jesse. Haven’t yet talked to him. His number is 321 402-8527.

Also got a response to the email I sent to fifty plus Class III licensees in Orange County. That response came from Christian Miller at 321 663-8242.