Filed: Jun. 25, 2012
Latest Update: Mar. 26, 2017
Summary: anniversary of the appeal date.courts judgment.the factual predicate required by a state statute. In any, event, the Commissioners interpretive mistake, repeated by the, Superior Court, is not even arguably the sort of arbitrary action, that could support a substantive due process claim.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1743
TODD R. RICH,
Plaintiff, Appellant,
v.
GEORGE LAPOINTE, Commissioner,
Maine Department of Marine Resources,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
Nicholas H. Walsh for appellant.
William R. Fisher, Assistant Attorney General, with whom
William J. Schneider, Attorney General, was on brief, for appellee.
June 21, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. In this action under 42
U.S.C. § 1983, Todd Rich claims that George LaPointe, in his
capacity as Commissioner of the Maine Department of Marine
Resources,1 violated procedural due process while acting under an
erroneous understanding of his legal authority in suspending Rich’s
lobster and crab-taking licence for a period beyond one year. Rich
appeals the district court’s grant of summary judgment for the
defendant Commissioner. Rich v. LaPointe, No. 2:10-cv-300, 2011 WL
2518623 (D. Me. June 24, 2011). We affirm.
A state marine patrol officer discovered eight lobster
traps belonging to another fisherman on Rich’s boat and charged him
in the Maine (state) District Court, so far as it matters here,
with violating Me. Rev. Stat. tit. 12, § 6434, prohibiting the
“molesting” of lobster gear. Traditionally, this was a criminal
offense carrying a mandatory three-year administrative suspension
of the fishing license of a “permit holder . . . convicted,” see
Me. Rev. Stat. tit. 12, § 6402, but just before the incident in
question the state legislature converted the offense to a civil
violation subject to fine, see id. § 6434(3-A). The suspension
provision, § 6402, remained on the books nevertheless. The push to
amend had come from the state, in order to make it easier to
enforce the molestation prohibition without diminishing the
seriousness of the offense.
1
There has been no formal substitution of his successor.
-2-
Rich and his counsel worked out an agreement with the
state’s lawyer to admit the molestation in return for dismissal of
other charges not involved here. On the day set for disposition in
the state district court, however, neither Rich nor his counsel
appeared, and he was held liable under § 6434 by default. When the
Maine Department of Marine Resources was informed of the judgment,
it notified Rich of the three-year suspension, to be imposed
without further hearing. Rich responded with an unsuccessful
motion for reconsideration of the liability judgment in the state
district court, and then resorted to statutory appeal of the
Commissioner’s administrative action to the state superior court,
arguing that as a merely civil offender under the amended
molestation statute he was not a person “convicted” within the
meaning of the unamended three-year suspension provision. The
superior court found his position “counter to the clear intent of
the legislature,” and denied relief just one day short of the first
anniversary of the appeal date. From that judgment he appealed
further to the Supreme Judicial Court of Maine, the Law Court,
which held for Rich nearly a year later, on the ground that the
“convicted” language of the unamended penalty statute plainly
excluded the merely civil offenders who might be found responsible
under the revised liability definition. Rich v. Dep’t of Marine
Res., 994 A.2d 815 (Me. 2010).
-3-
This § 1983 action followed, claiming a denial of
procedural due process of law, by a person acting under color of
state law, in depriving Rich of his property in the fishing licence
beyond the period of one year that Rich concedes was authorized by
a statute not otherwise of concern here. See Me. Rev. Stat. tit.
12, § 6402. He argues that the Commissioner’s action was a clear
violation of state law, and was constitutionally defective both for
his failure to provide a hearing before the license suspension
became effective, and for the failure of state law to provide
adequate post-deprivation process for advancing Rich’s ultimately
successful position. The federal district court entered summary
judgment for the defendant, a result that on de novo review,
Méndez-Aponte v. Bonilla, 645 F.3d 60, 64 (1st Cir. 2011), we think
was correct.
There is no dispute here that Rich’s claim satisfies the
threshold elements required for relief under § 1983: the
Commissioner was acting under color of state law, and the fishing
license was a species of property, of which the suspension order
deprived him until vacated in the wake of the state appellate
court’s judgment. The only issue is the adequacy of the procedure
available to Rich to vindicate his interest.
As for procedural protection that might be due prior to
the suspension order, Rich, of course, does not deny that he had
the opportunity for a hearing on the factual basis claimed for the
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suspension (his possession of another lobsterman’s traps), an
opportunity in the state district court that he agreed to waive and
ultimately lost by defaulting altogether. But he argues that due
process demands more than this trial opportunity, for two reasons.
First, he says that prior to his agreement and subsequent default
in lieu of trial on the molestation charge he was never informed by
the state (or, for that matter, by his own counsel) that a three-
year suspension would be ordered as a consequence. Moreover, he
claims that regardless of the court hearing on the underlying
charge, administrative punishment for a civil violation with a
suspension conditioned on a criminal conviction is the sort of
illegal state action that should not be suffered without a chance
to explain an objection in advance.
Each argument rests on a faulty premise. The assertion
that due process called for the state or its district court to warn
Rich that the Commissioner would impose a three-year suspension
seems to assume that the court could not recognize a default for
failure to appear, let alone a negotiated settlement, without a
warning of consequences it could trigger at the hands of a state
executive branch official. This assumption is made out of whole
cloth, and Rich makes no attempt to support any analogy to the rule
that may have prompted it: that a court must assure that waivers of
federal constitutional rights be made knowingly before a court may
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accept a guilty plea to a criminal charge. See Boykin v. Alabama,
395 U.S. 238 (1969).
Rich’s second point, that imposing a penalty for
“conviction” after a civil default judgment violates the
Constitution absent some further predeprivation process, is best
evaluated by looking to a sample of the cases he cites as
authority. He relies, for example, on Freeman v. Blair, 862 F.2d
1330 (8th Cir. 1988), denying qualified immunity for a
predeprivation process violation in summarily suspending an
occupational permit without establishing a “hazardous condition,”
the factual predicate required by a state statute. Likewise, he
points to Guillemard-Ginorio v. Contreras-Gómez,
490 F.3d 31 (1st
Cir. 2007), holding that the suspension of an insurance license
without opportunity for a hearing violated due process. But in
Rich’s case there was a predeprivation opportunity to litigate
facts, and there was no dispute about them after the defaulted
district court proceeding. Probably, Rich comes closest to
revealing his intended point when he cites Malley v. Briggs,
475
U.S. 335, 341 (1986) for the proposition that those who knowingly
commit substantive constitutional violations have no qualified
immunity. His implicit point is that the Commissioner’s
misapplication of the penalty statute must have been knowing, with
the consequence that relying on its summary procedure must have
been a due process violation per se. But if this is Rich’s point,
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it is answered by the rule that action by an official based on a
mistake of state law is not a due process violation or its
equivalent. Alton Land Trust v. Town of Alton, 745 F.2d 730, 732-
33 (1st Cir. 1984); see Burgess v. Ryan,
996 F.2d 180, 184 (7th
Cir. 1993).2
It is, however, properly categorized as a random and
unauthorized error, as to which due process is adequately served by
a post-deprivation hearing. See Parratt v. Taylor, 451 U.S. 527
(1981) (negligent deprivation of property), overruled on other
grounds by Daniels v. Williams,
474 U.S. 327 (1986); Hudson v.
Palmer,
468 U.S. 517 (1984) (intentional deprivation of property);
see also Hadfield v. McDonough,
407 F.3d 11, 19 (1st Cir. 2005).
Rich resists this authority by claiming that the Commissioner’s
conformity with settled procedure excludes the Parratt-Hudson rule
as inapposite. But he cannot have it both ways: his whole argument
rests on the claim that the Commissioner was plainly acting without
authority in a suddenly novel situation, by imposing a mandatory
suspension predicated only on newly created civil liability but no
criminal conviction. This is not a description of “settled
procedure,” and this is a case in which reliance on post-
deprivation process will do.
2
We do not understand Rich to be raising any issue of
substantive, as distinct from procedural, due process. In any
event, the Commissioner’s interpretive mistake, repeated by the
Superior Court, is not even arguably the sort of arbitrary action
that could support a substantive due process claim.
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Here, that post-deprivation avenue was the appeal to the
Maine Superior Court, subject to ultimate review by the Law Court.
Rich says that the appellate process failed to satisfy the
constitutional guarantee because it took so long to work through.
He points out that he was in harsh economic straits by the time the
Maine Law Court finally held that both the Commissioner and the
Superior Court had been mistaken, and declared the three-year
suspension provision inapplicable to a civil violation. But we
think this claim of inadequate process is not well taken. Rich
does not deny that he could have asked the courts to stay the
licence suspension during appeal, at least as to the period beyond
the one year for which he agrees suspension would have been proper.
Indeed, though we do not rest on this, the superior court judgment
issued within that one-year period (tolled for the two months’
extension of time for briefing requested by Rich). Thus, the
reason Rich suffered the longer suspension is not attributable to
a failure to provide adequately timely process, but to what the
state’s final judicial authority determined was an unsound reading
of the governing statutes. And as we just mentioned, legal error
without more does not equate to a denial of due process of law.
Affirmed.
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