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The Substantive Due Process problem

Written by Daniel P. Dalton on January 8, 2013 Category: Land Use and Zoning

It is a commonly-held belief that claims of substantive and procedural due process are particularly difficult to win in modern courts. Today’s discussion explores a case which certainly illustrates that even the most dishonest and unsettling government actions may still not support a claim of deprivation of due process. The Sixth Circuit Court of Appeals decided the case of EJS Properties, LLC v. City of Toledo, 698 F.3d 845 (6th Cir. 2012) on September 5, 2012. In this case, the plaintiff, EJS Properties, LLC (EJS) brought several constitutional claims under 42 U.S.C. §1983 against the City of Toledo and City Council Representative Robert McCloskey. EJS claimed that McCloskey asked for a bribe in exchange for voting to approve EJS’s re-zoning request. The court ruled in favor of the City and McCloskey on all counts.

EJS sought to build a charter school at a commercial site in East Toledo. The project required the property to be re-zoned. The petition for re-zoning was approved first by the County Plan Commission and then unanimously by the City Council’s Zoning and Planning Committee. The only remaining hurdle to full approval of the re-zoning was a vote from the full City Council. Before the vote could occur, the city councilman from the district containing the proposed school site, Robert McCloskey, held a lunch meeting with executives affiliated with the school project. At the meeting, McCloskey asked the executives to give $100,000 to a local community center to assist retirees. The executives declined.

At the City Council meeting which was to have the vote on the re-zoning request, councilman Gerken moved to table the matter for two weeks. EJS claimed that McCloskey had actively tried to persuade other council members to vote against the re-zoning and then asked councilman Gerken to table the matter when he “could not get enough to defeat the measure…” The defendants admitted that thereafter McCloskey phoned several executives including the owner of EJS and left voicemails “seeking a monetary contribution to the retirees’ fund in connection with the pending re-zoning Ordinance.” When the full City Council vote on the re-zoning was finally held, the re-zoning was denied 7-4 with four of the seven “against” votes having been changed from the Committee vote. EJS filed a complaint alleging, among other claims, a violation of substantive and procedural due process. The federal district court ruled in favor of the defendants.

As stated by the court: “The Fourteenth Amendment of the United States Constitution protects individuals from the deprivation ‘of life, liberty, or property, without due process of law.’” The concept of due process involves both substantive and procedural due process. In a nutshell, in order to bring a successful due process claim, the district court held that there must be a “deprivation of a liberty or property interest.” The court found that EJS had no property interest in this case. Perhaps more surprisingly, the court also found that EJS had no liberty interest in this case.

EJS argued that it had a liberty interest in a government decision free from corruption and an interest in the pursuit of business contracts without unlawful interference. In regard to the contract argument, the court dismisses the argument rather quickly and concludes the one-paragraph discussion by saying that “EJS’s claim sounds more in tort law than in a violation of a liberty interest.” In regard to the argument for a right to be free from government corruption, the court simply concludes that no such right exists for due process purposes. The court justifies its position by reasoning that such a right to be free of government corruption in decision-making has been rejected in other cases.

EJS also argues that even if there is no liberty or property interest in play, the actions of the government in this case “shock the conscience” enough to give rise to a due process claim. While the court seems to hint that such a claim may be possible, it goes on to say that the instant facts still do not shock the conscience. The court says that while the solicitation of a bribe by a city councilman may be “reprehensible, it was not the type of conduct which so ‘shocks the conscience’ that it violates the appellant’s substantive due process rights.” EJS also lost on its other claims and the decision of the district court was affirmed.

As stated at the beginning, this case shows just how difficult it can be to bring a successful due process claim even when one is dealing with “reprehensible” behavior on the part of the government. There is a significant difference between what the public at large may perceive to be a “right” and what courts will hold to be a “right” deserving of the protection of due process.

The attorneys at Dalton & Tomich, plc have extensive experience with land use and constitutional issues. We represent individuals and organizations across the country. If you feel that your rights are being violated, please do not hesitate to contact us.

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