(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: This is a companion case to General Motors Corp. v. City of Linden also decided today.)
Argued October 24, 1995 -- Decided February 29, 1996
O'HERN, J., writing for a unanimous Court.
The issue on appeal is whether a party that has appeared before a local rent leveling board has a
claim under the Federal Civil Rights Act,
42 U.S.C. §1983 (§ 1983), for an unconstitutional deprivation of
property when a member of the board has acted in a biased manner and the other members of the board did
not move to disqualify the member lacking in impartiality. Also addressed is whether the doctrine of Parratt
v. Taylor (the Parratt doctrine) applies in the context of municipal rent controls. Parratt holds that when a
deprivation of property results from the random and unauthorized actions of a state employee and any pre-deprivation process would have been impracticable, there is no due process violation so long as an adequate
post-deprivation remedy is available.
David Rivkin, Edward Rivkin and Judith Rivkin (the Rivkins) are partners in Galaxy Manor, a
mobile home park in Dover Township. Under the Dover Township Mobile Home Park Rent Leveling
Ordinance, landlords must apply to the Dover Township Rent Leveling Board (Board) for rental increases.
In May 1990, the Rivkins filed an application with the Board for a rent increase based on $59,624.96
of capital improvements to Galaxy Manor. The Board conducted hearings on this application in 1990.
Edward Baltarzuk, an actual member of Galaxy Manor, was a member of the Board. In these hearings,
Baltarzuk acted as a biased advocate rather than as one sitting in impartial judgment. The Rivkins requested
that Baltarzuk be removed from the proceedings. The Board denied that request and, with Baltarzuk
participating, granted $20,641.42 in rent increases.
The Rivkins appealed to the Law Division, seeking a court determination of the amount of the rental
increase, arguing that the findings of the Board were arbitrary, capricious and unreasonable because the
Board had failed to disqualify a biased Baltarzuk. According to the Rivkins, the Board's actions constituted
a violation of § 1983, permitting recovery of damages and counsel fees.
The Law Division reserved decision on the Rivkins' application for counsel fees but agreed that
Baltarzuk's bias had tainted the proceedings. The court did not determine the amount of the rental increase,
but ruled that the Board members were not biased and would not be influenced once Baltarzuk was removed
from the proceedings. The court remanded the matter to the Board with all issues to be reconsidered absent
Baltarzuk's participation. After the rehearing, the Board approved an additional increase of $24,089.67.
Thereafter, the trial court addressed the issues it had previously reserved decision on. The court
awarded counsel fees and compensatory damages pursuant to § 1983 and § 1988, finding that Baltarzuk's
action had "permeated the Board" and that the actions of the Board had violated the Rivkins' due process
rights.
Both parties appealed to the Appellate Division, which affirmed the remand order, finding that the
Rivkins' had suffered no due process violation under § 1983 and, therefore, were not entitled to counsel fees
or compensatory damages. The Appellate Division concluded that Baltarzuk's actions were random and
unauthorized and that the Rivkins had been afforded an adequate post-deprivation remedy under State law.
As such, the requirement of procedural due process had been satisfied.
The Supreme Court granted the Rivkins' petition for certification. Before the Court the Rivkins
assert that they have been denied their constitutionally guaranteed rights under the Fourteenth Amendment
to "substantive due process" and have been deprived of their property without "procedural due process."
HELD: Absent egregious misconduct that shocks the conscience in the sense of violating civilized norms of
governance, or invidious discrimination on the part of a board member or board, so long as the
State provides a plain, adequate and timely remedy to redress irregularities in the proceedings, a
party aggrieved by the determinations of a municipal rent leveling board does not have a claim for
relief under the Federal Civil Rights Act,
42 U.S.C. §1983.
1. Substantive due process is reserved for the most egregious governmental abuses against liberty or
property rights, abuses that shock the conscience or otherwise offend either judicial notions of fairness or
human dignity. Thus, the conduct of a Board member at a rent proceeding in violation of acceptable Board
practice does not rise to the level of a substantive due process violation under U.S. Supreme Court
standards. Moreover, when property rights are denied in the course of conventional municipal
decisionmaking, there is no substantive due process violation. (pp. 7-22)
2. Under the Parratt doctrine, for deprivation of property to violate the Due Process Clause of the
Fourteenth Amendment, it must occur without the opportunity to be heard at a meaningful time and in a
meaningful manner. Post-deprivation remedies are satisfactory substitutes for pre-deprivation process when
a meaningful pre-deprivation hearing is impracticable, and when property interests, rather than life or liberty
interests, are at stake. Thus, an adequate post-deprivation hearing will satisfy the requirements of the Due
Process Clause. Of course, the existence of a post-deprivation state remedy is constitutionally inadequate
when the deprivation of property results from an established state procedure. Thus, a threshold question in
any procedural due process case is whether the deprivation was caused by random and unauthorized conduct
or whether it resulted from an established state procedure. (pp. 22-26)
3. Here, the analogy to Parratt is appropriate, though imperfect. The State system itself neither caused the
deprivation of the Rivkins' property nor amounts to a per se violation of the Rivkins' procedural due-process
rights. Rather, it was the unpredictable behavior of the tenant representative that went beyond the scope of
the ordinance that caused the Rivkins' problems. (pp. 26-31)
4. The Rivkins contend that an action in lieu of prerogative writs is not an adequate remedy because it does
not enable them to recover damages, counsel fees or costs. Parratt makes clear that state remedies need not
provide all the relief that would have been available if the plaintiff were successful under § 1983. Moreover,
a state remedy would not be considered inadequate simply because it did not allow for the recovery of
counsel fees. Therefore, the action in lieu of prerogative writs afforded the Rivkins an adequate post-deprivation state remedy to address the misconduct of the Board member or the Board. As such, the
Rivkins' rights to procedural due process were not violated and they cannot sustain an action for damages
and attorneys' fees under § 1983. (pp. 31-34)
5. The Equal Protection Clause should not be invoked each time applications are incorrectly denied by a
municipal agency. Ordinarily, to sustain a claim of violation of equal protection, a plaintiff must be singled
out because of membership in a protected class and cannot be just the victim of a random act of
governmental incompetence. (pp. 35-37)
6. So long as state legal systems are committed to principles of equal justice and provide plain and adequate
remedies to prevent unconstitutional deprivations of property, there is no reason for claimants to seek
redress in federal court or under federal law. When, however, a governmental agency is engaged in
egregious misconduct rising to the level of a substantive due process violation or has invidiously discriminated
against a member of society, a § 1983 violation occurs regardless of the fairness of the procedures used to
implement the abuse. The conduct in this case does not rise to such a level. (pp. 34-42)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and
COLEMAN join in JUSTICE O'HERN's opinion.
SUPREME COURT OF NEW JERSEY
A-
26 September Term 1995
DAVID RIVKIN, EDWARD RIVKIN, and
JUDITH RIVKIN, t/a GALAXY MANOR,
a New Jersey Partnership,
Plaintiffs-Appellants,
v.
DOVER TOWNSHIP RENT LEVELING
BOARD,
Defendant-Respondent.
Argued October 24, 1995 -- Decided February 29, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
277 N.J. Super. 559 (1994).
Reuel E. Topas argued the cause for
appellants (Levin, Shea, Pfeffer, McMahon and
Russell, attorneys).
Courtland T. Babcock, II, argued the cause
for respondent (Babcock, Hennes & Bielory,
attorneys).
Bruce D. Greenberg argued the cause for
amicus curiae Hudson County Taxpayers'
Association (Greenbaum, Rowe, Smith, Ravin &
Davis, attorneys).
Stuart R. Koenig argued the cause for amici
curiae New Jersey State League of
Municipalities and New Jersey Institute of
Municipal Attorneys(Stickel, Koenig &
Sullivan, attorneys).
Margaret B. Carmeli submitted a brief on
behalf of amicus curiae The New Jersey
Manufactured Housing Association (Giordano,
Halleran & Ciesla, attorneys; Paul H.
Schneider, of counsel; Ms. Carmeli and Debra
J. Rubenstein, on the briefs).
The opinion of the Court was delivered by
O'HERN, J.
The question in this appeal is whether a party that has
appeared before a local rent leveling board has a claim under the
Federal Civil Rights Act,
42 U.S.C. §1983, for an
unconstitutional deprivation of property when a member of the
board has acted in a biased manner and the other members of the
board did not remove or disqualify the member lacking in
impartiality. The question is related to that concerning an
allegedly unconstitutional tax assessment in General Motors v.
Linden, ___ N.J. ___ (1996), also decided today. In General
Motors, we relied on National Private Truck Council, Inc. v.
Oklahoma Tax Comm'n, 515 U.S. ___,
115 S. Ct. 2351,
132 L. Ed.2d 509 (1995), to conclude that there was no basis for courts to
award relief under § 1983 when an adequate state legal remedy
exists to correct an arbitrary tax assessment. We find that
similar principles of federalism lead generally to the same
conclusion in the context of land use controls.
The primary issue is whether the doctrine of Parratt v.
Taylor,
451 U.S. 527,
101 S. Ct. 1908,
68 L. Ed.2d 420 (1981),
applies in this context of municipal rent controls. Parratt
holds that when a deprivation of property results from the random
and unauthorized actions of a state employee and pre-deprivation
process would have been impracticable, there is no due process
violation so long as an adequate post-deprivation remedy is
available. We hold that, absent egregious misconduct that shocks
the conscience in the sense of violating civilized norms of
governance, or invidious discrimination on the part of a board
member or board, so long as the State provides a plain, adequate
and timely remedy to redress irregularities in the proceedings, a
party aggrieved by the determinations of a municipal rent
leveling board does not have a claim for relief under 42 U.S.C. §
1983.
David Rivkin, Edward Rivkin, and Judith Rivkin are partners in Galaxy Manor, a mobile home park in Dover Township. Dover Township has a Mobile Home Park Rent Leveling Ordinance ("Code") that requires landlords to apply to the Dover Township Rent Leveling Board ("Board") for rental increases. Dover Code § 104-35A provides that the Board be made up of one mobile home park landlord, one mobile home park tenant, and three non-affiliated public members.
In May 1990, the Rivkins filed an application with the Board for a rent increase based on $59,624.96 of capital improvements to the Galaxy Manor mobile home park. The Code provides:
A landlord may seek an additional charge for major capital improvements. . . . The landlord seeking a capital improvement surcharge shall appeal for said surcharge to the Rent Leveling Board, which shall determine . . . if said improvement is a major improvement and, if so, the amount of
increase granted for such major improvement
and establish the conditions of such
increase.
The Board conducted four hearings on the application in June,
July, August and October, 1990. Edward Baltarzuk, the mobile
home park tenant member of the Board, took an active part in the
proceedings. Baltarzuk, who was actually a resident of the
Galaxy Manor Mobile Home Park, appeared to view his position on
the Board as one of advocacy rather than adjudication. He stated
on the record that it was his function to "serve the people of
the mobile home park." He continually challenged the Rivkins and
their representatives both on a personal basis, referring to
their attorney as a "yo-yo," and on a partisan basis, introducing
facts from outside the record.
Baltarzuk's manner was threatening to the Rivkins. He said:
"You are looking for trouble and you are going to get it."
Baltarzuk urged a tenant witness to file a complaint against the
Rivkins for violating equal housing opportunity laws. The
following is a typical antagonistic exchange between the Rivkins
and Baltarzuk:
Mr. Levin (attorney for Rivkin): That is our
application. Our obligation is to provide
this application --
Mr. Baltarzuk: You are supposed to file the
truth, sir.
Mr. Levin: Before you call anyone a liar, you are the fellow that is challenging our
application without giving us the benefit of
telling us where you get the information.
Mr. Rivkin, is the rental structure as
contained within the application true and
accurate?
Mr. Rivkin: As of the first of May, yes.
Mr. Baltarzuk: Therefore, this application
should not even be heard. It is an illegal
rental increase. I have a person right here
in the audience who is paying a wrong rent.
How can she pay 275? You are telling me here
she is paying 223.
Mr. Levin: I find this incredible, that
somebody who has to make a judgment here has
apparently taken it upon himself to go out
and solicit whatever it is your [sic] trying
to tell us . . . .
Baltarzuk, in essence, offered himself as a witness concerning
certain items and was, in effect, testifying in the proceedings.
The Rivkins requested that Baltarzuk be removed from the
proceedings. The Board denied these requests and, with Baltarzuk
participating, granted $20,641.42 in rent increases for capital
improvements, finding that the majority of the Rivkins'
application constituted "capital expenditures" rather than "major
capital improvements" under the ordinance. Capital expenditures
may not be recovered by rent increases.
The Rivkins appealed to the Law Division to determine the
amount of the rental increase. They claimed that the "arbitrary,
capricious, and unreasonable" findings of the Board and the
failure of the Board to disqualify Baltarzuk for his obvious bias
constituted a civil rights violation allowing recovery of damages
and attorney's fees under
42 U.S.C. §1983.
The Law Division reserved decision on the application for
attorney's fees but agreed that Baltarzuk's misconduct and
manifest bias had tainted the proceedings. However, it refused
to make a substantive determination on the rental increase. It
ruled that the Board members were not biased and would not be
influenced once Baltarzuk was removed. The court remanded the
matter to the Board with all issues to be reconsidered without
the participation of Baltarzuk. The Appellate Division denied
the Rivkins' motion for leave to appeal the remand order. The
hearings proceeded on remand without the participation of
Baltarzuk. Upon rehearing, the Board approved an additional
increase of $25,089.67 for a total of $45,731.09. The Law
Division then disposed of the issue of attorney's fees and
constitutional damages. In its bench opinion, the Law Division
found that Baltarzuk's actions had "permeated the Board," "that
the Board was recalcitrant with respect to th[e] matter" of his
participation, and had "violated the plaintiffs' due process
rights." It awarded $39,679.55 in counsel fees and $6,303.34 in
compensatory damages under 42 U.S.C. §§ 1983, 1988.
Both parties appealed. The Rivkins appealed the remand to
the Board, claiming that the Law Division should have made the
substantive determination of the rental increase because the
entire Board had been tainted by Baltarzuk's bias. The Board
appealed the imposition of § 1983 relief and attorney's fees.
The Appellate Division affirmed the remand order, but found
that the plaintiffs had suffered no due process violation under §
1983, and therefore were not entitled to attorney's fees or
compensatory damages.
277 N.J. Super. 559, 570 (1994). Basing
its ruling on Parratt v. Taylor,
451 U.S. 527,
101 S. Ct. 1980,
68 L. Ed.2d 420 (1981), the Appellate Division found the actions
of Baltarzuk to be "random and unauthorized," that the plaintiffs
had had an adequate post-deprivation remedy under state law, and
that the requirements of procedural due process had been
satisfied. We granted plaintiffs' petition for certification.
140 N.J. 275 (1995).
Section 1983 is the modern codification of the first section of legislation passed as part of the Ku Klux Klan Act of 1871 ("the Act").See footnote 1 The Act, entitled "an Act to enforce the
Provisions of the Fourteenth Amendment to the Constitution of the
United States, and for other Purposes," addressed conditions then
prevalent in some of the southern States. Monroe v. Pape,
365 U.S. 167, 171-73,
81 S. Ct. 473, 476-77,
5 L. Ed.2d 492, 497
(1961) (quotation omitted). At that time, former slaves and
their descendants were subjected to egregious violations of
liberty and property, and state governments were either incapable
or unwilling to protect these citizens. During debate in the
House of Representatives, Mr. Beatty, a Member of Congress from
Ohio, summarized the conditions that the Act was meant to
address:
Men were murdered, houses were burned, women
were outraged, men were scourged, and
officers of the law shot down; and the State
made no successful effort to bring the guilty
to punishment or afford protection or redress
to the outraged and innocent.
[Id. at 175, 81 S. Ct. at 478, 5 L. Ed.
2d at
499 (citing Cong. Globe, 42d Cong., 1st Sess,
428).]
The Act addressed these problems in three ways; it overrode certain state laws, it provided a remedy where state law was inadequate, and it provided a federal remedy where the state remedy was adequate but unavailable in practice. Id. at 173-74, 81 S. Ct. at 477, 5 L. Ed. 2d at 498. As the title of the Act
states, the constitutional basis of the Act was the Fourteenth
Amendment. However, in the Slaughterhouse Cases, 83 U.S. (16
Wall.) 36 (1873), the Supreme Court narrowly construed the rights
conferred by the Fourteenth Amendment. The Court ruled that only
those rights that "owe their existence to the Federal government,
its national character, its Constitution, or its laws" applied to
the states by way of the Fourteenth Amendment. Id. at 79. Civil
rights were specifically excluded from those the Court deemed
subject to federal review through the Fourteenth Amendment.
Ibid. "[S]ection 1983 . . . lay dormant as a result of
restrictive judicial construction until the Supreme Court's 1961
decision in Monroe v. Pape." Note, Section 1983 and Federalism,
90 Harv. L. Rev. 1133, 1135-36 (1977).
In Monroe v. Pape, supra, a husband and wife sued the City
of Chicago and its police officers for a violation of their
Fourth Amendment rights when the police conducted a warrantless
search of their home and subjected the husband to a humiliating
strip search. In finding that the local police officers were
liable to the plaintiffs for their unlawful action, irrespective
of an available state remedy, the Court refused to limit the Act
to the circumstances described in the arguments made in favor of
its passage:
Although the legislation was enacted because
of the conditions that existed in the South
at that time, it is cast in general language
and is as applicable to Illinois as it is to
the States whose names were mentioned over
and again in the debates. . . . Hence the
fact that Illinois by its constitution and
laws outlaws unreasonable searches and
seizures is no barrier to the present suit in
the federal court.
[Monroe, supra, 365 U.S. at 183, 81 S. Ct. at
482, 5 L. Ed.
2d at 502-03.]
So well-developed a body of law has followed Monroe that an
entire treatise is devoted to this single section of the Code.
Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation:
The Law of Section 1983 (3d ed. 1991).
Ordinarily, the first task in any § 1983 action is to
identify the state actor, "the person acting under color of law,"
that has caused the alleged deprivation. See Monell v. New York
City Dep't of Social Services,
436 U.S. 658, 691,
98 S. Ct. 2018,
2036,
56 L. Ed.2d 611, 636 (1978). The Board does not dispute
that its members were "persons acting under color of law."See footnote 2
The second task is to identify a "right, privilege or
immunity" secured to the claimant by the Constitution or other
federal laws of the United States.
42 U.S.C. §1983 (1988).
Plaintiffs often misstate their claims by alleging a violation of
§ 1983 rights. Section 1983 "is not itself a source of
substantive rights," but merely provides "a method of vindicating
federal rights elsewhere conferred . . . ." Baker v. McCollan,
443 U.S. 137, 144 n.3,
99 S. Ct. 2689, 2694 n.3,
61 L. Ed.2d 433, 442 n.3 (1979). We must therefore first identify the
specific constitutional rights allegedly infringed.
In this case, plaintiffs primarily assert that they have been denied their constitutionally guaranteed rights under the Fourteenth Amendment to "substantive due process" and, in the alternative, that they have been deprived of property without the "procedural due process" guaranteed by the Fourteenth Amendment.
In his concurring opinion in Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed.2d 662 (1986), Justice Stevens explained that the Due Process Clause is the source of three different kinds of constitutional protection:
First, it incorporates specific protections defined in the Bill of Rights. . . . Second, it contains a substantive component, sometimes referred to as "substantive due process," which bars certain arbitrary government actions "regardless of the fairness of the procedures used to implement them." Third, it is a guarantee of fair procedure, sometimes referred to as "procedural due process" [under which the State may not] take property without providing appropriate procedural safeguards.
[Id. at 337, 106 S. Ct. at 677-68,
88 L. Ed 2d
at 672 (Stevens, J., concurring) (citation and
footnotes omitted).]
Richard Arnold, Chief Judge of the Eighth Circuit Court of
Appeals, has described the doctrine of substantive due process as
"an oxymoron if there ever was one" and as "a linguistic
monstrosity, if not a legal one." Lemke v. Cass County,
846 F.2d 469, 471 (8th Cir. 1987) (Arnold, J., concurring). In its most
discredited form, the substantive due process doctrine led to the
invalidation of many state and federal attempts to enact social
legislation. See, e.g., Lochner v. New York,
198 U.S. 45, 64,
25 S. Ct. 539, 546,
49 L. Ed. 937, 944-45 (1905) (invalidating
overtime labor law as undue interference with freedom of
contract). Suffice it to observe that considerable confusion
surrounds the doctrine. Michael T. Carton, Note,
25 Seton Hall
L. Rev. 1560, 1560-61 (1995) (remarking that substantive due
process analysis has resulted in "obscure and . . . contradictory
holdings, widespread debate, and general perplexity").
To understand the concept of substantive due process, it is
necessary to understand that prior to the application of many of
the specific provisions of the Bill of Rights to the states the
primary federal protection against state action was in the Due
Process Clause of the Fourteenth Amendment. See Rosalie Berger
Levinson, Protection Against Government Abuse Of Power: Has The
Court Taken The Substance Out Of Substantive Due Process,
16 U.
Dayton L. Rev. 313 (1991) (observing that only after gradual
process of incorporation did most of provisions of Bill of Rights
apply to states through Fourteenth Amendment Due Process Clause)
[hereinafter Levinson]. Rochin v. California,
342 U.S. 165,
72 S. Ct. 205,
96 L. Ed. 183 (1951), is a noted example of a
substantive due process violation in the pre-incorporation era.
In Rochin, the Court determined that the actions of police
officers in instructing a doctor to pump Rochin's stomach against
his will were "so brutal and so offensive to human dignity" that
they "offend[ed] a sense of justice" and resulted in denying
Rochin his substantive due process rights. Id. at 173-74, 72
S. Ct. at 210, 96 L. Ed. at 190-91 (quotation omitted). Justice
Frankfurter equated the conduct of the officers in Rochin with
the conduct of police officers in Malinski v. New York,
324 U.S. 401, 414,
65 S. Ct. 781,
89 L. Ed. 1029, 1037 (1945), which, the
Justice said, had violated "civilized standards of law." Rochin,
supra, 342 U.S. at 169, 169 n.2, 72 S. Ct. at 208, 208 n.2, 96 L.
Ed. at 188, 188 n.2. In its most characteristic form, substantive
due process is reserved for "state intrusions into realms of
personal privacy and bodily security through means so brutal,
demeaning and harmful as literally to shock the conscience of a
court." Ramos v. Gallo,
596 F. Supp. 833, 837 (D. Mass. 1984).
It is to this background that we may relate the Court's
statement in Albright v. Oliver, 510 U.S. ___, ___,
114 S. Ct. 807, 813,
127 L. Ed.2d 114, 123-24 (1994), that, when a
particular provision of the Bill of Rights "provides an explicit
textual source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more
generalized notion of `substantive due process' must be the guide
for analyzing th[e] claim." Ibid. (quotation omitted).
The Supreme Court has long hesitated to afford an overly
broad reading to the substantive component of the Due Process
Clause. The Albright decision (involving a detention based upon
an unsubstantiated warrant) is only the most recent manifestation
of the Court's reluctance to expand the doctrine. See Collins v.
City of Harker Heights,
503 U.S. 115, 125,
112 S. Ct. 1061, 1068,
117 L. Ed.2d 261, 273 (1992) ("As a general matter, the Court
has always been reluctant to expand the concept of substantive
due process because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended.").
In the light of the clearly evident trend of the Supreme
Court to limit substantive due process rights under the
Fourteenth Amendment, we believe that the denial of a property
right in the context of municipal governance rarely will rise to
the level of a substantive due process violation.
The substantive due process doctrine "does not protect
individuals from all governmental actions that infringe liberty
or injure property in violation of some law." PFZ Properties,
Inc. v. Rodriguez,
928 F.2d 28, 31 (1st Cir.) (quotation and
citations omitted), cert. granted,
502 U.S. 956,
112 S. Ct. 414,
116 L. Ed.2d 435 (1991), and cert. dismissed,
503 U.S. 257,
112 S. Ct. 1151,
117 L. Ed.2d 400 (1992). Rather, substantive due
process is reserved for the most egregious governmental abuses
against liberty or property rights, abuses that "shock the
conscience or otherwise offend . . . judicial notions of fairness
. . . [and that are] offensive to human dignity." Weimer v.
Amen,
870 F.2d 1400, 1405 (8th Cir. 1989) (quotations omitted).
With the exception of certain intrusions on an individual's
privacy and bodily integrity, the collective conscience of the
United States Supreme Court is not easily shocked. See Irvine v.
California,
347 U.S. 128, 133,
74 S. Ct. 381, 384,
98 L. Ed. 561,
569 (1954) (finding no Fourteenth Amendment violation when state
police officers broke into defendant's home and secretly placed a
microphone in defendant's bedroom, as the trespass involved no
coercion, violence or brutality to the defendant). Recall that
in Rochin Justice Frankfurter had equated substantive due process
violations with governmental abuses that "are . . . too close to
the rack and the screw to permit of constitutional
differentiation." Rochin, supra, 342 U.S. at 172, 72 S. Ct. at
210, 96 L. Ed. at 190. The conduct of an errant board member who
berated an applicant and brought in facts outside the record at a
rent proceeding in violation of acceptable board practice does
not rise to the level of a substantive due process violation
under the Supreme Court's standards.
In Creative Environments, Inc. v. Estabrook,
680 F.2d 822
(1st Cir.), cert. denied,
459 U.S. 989,
103 S. Ct. 345,
74 L. Ed.2d 385 (1982), the First Circuit Court of Appeals rejected a real
estate developer's claim that a municipal planning board deprived
the corporation of its substantive due process rights under the
Fourteenth Amendment. The corporation alleged a conspiracy by
the planning board to deny the corporation's subdivision plan.
It based its conspiracy theory upon the town's "overall
distortion of the existing statutory and regulatory scheme . . .
[and] arbitrary misapplication of state law." Id. at 831.
While acknowledging that "it [was] not impossible to derive
a theoretical basis for [the corporation's substantive due
process] argument" from certain Supreme Court cases, the court
nevertheless observed that
were such a theory to be accepted, any hope
of maintaining a meaningful separation
between federal and state jurisdiction in
this and many other areas of law would be
jettisoned. Virtually every alleged legal or
procedural error of a local planning
authority or zoning board of appeal could be
brought to a federal court on the theory that
the erroneous application of state law
amounted to a taking of property without due
process. Neither Congress nor the courts
have, to date, indicated that section 1983
should have such a reach.
The Creative court acknowledged that official misconduct that deprives one of a property interest may rise to the level of a substantive due process violation in limited instances, as when a government body's actions are motivated by racial animus or political or personal bias, but that the corporation in Creative had not alleged such abuse. Id. at 832 (citing Progress Dev. Corp. v. Mitchell, 286 F.2d 222 (7th Cir. 1961) (racial animus);
Cordeco Dev. Corp. v. Santiago Vasquez,
539 F.2d 256 (1st Cir.)
(personal and political bias), cert. denied,
429 U.S. 978,
97 S.
Ct. 488,
50 L. Ed.2d 586 (1976)). The court concluded its
substantive due process analysis by noting that
[t]he authority cited by [the corporation],
as well as other cases, all suggest that the
conventional planning dispute..at least when
not tainted with fundamental procedural
irregularity, racial animus, or the
like..which takes place within the framework
of an admittedly valid state subdivision
scheme is a matter primarily of concern to
the state and does not implicate the
Constitution. This would be true even were
planning officials to clearly violate, much
less "distort" the state scheme under which
they operate. . . . Every appeal by a
disappointed developer from an adverse ruling
by a local . . . planning board necessarily
involves some claim that the board exceeded,
abused or "distorted" its legal authority in
some manner, often for some allegedly
perverse . . . reason.
[Id. at 833 (quotation, citation
and footnote omitted).]See footnote 3
Other federal circuits have found that when property rights
are denied in the course of conventional municipal decisionmaking
there is no substantive due process violation. See Chesterfield
Dev. Corp. v. City of Chesterfield,
963 F.2d 1102 (8th Cir. 1992)
(determining that city's bad-faith violation of state law in
enforcing invalid zoning plan against development remains
violation of state law and does not give rise to substantive due
process violation); Harding v. County of Door,
870 F.2d 430, 431-32 (7th Cir.) (finding no substantive due process violation when
county revoked building permit after construction of housing
project had commenced, notwithstanding that state reviewing court
had determined the action to be illegal), cert. denied,
493 U.S. 853,
110 S. Ct. 154,
107 L. Ed.2d 112 (1989).
Even though the Rent Leveling Board may have violated its
own standards of governance by allowing a member with a
demonstrated bias to participate in the hearings, we believe that
such governmental action does not give rise to a substantive due
process claim.
We acknowledge that the standard that we adopt today may be
contrary to a more expansive interpretation given the Due Process
Clause by many circuit courts, which have found that "arbitrary
or irrational" government actions deny substantive due process
rights. See, e.g., DeBlasio v. Zoning Bd. of Adjustment,
53 F.3d 592, 593 (3d Cir.) (concluding that "in the context of land use
regulation, a property owner states a substantive due process
claim where he or she alleges that the decision limiting the
intended land use was arbitrarily or irrationally reached"),
cert. denied, ___ U.S. ___,
116 S. Ct. 352,
133 L. Ed.2d 247
(1995); Del Monte Dunes v. City of Monterey,
920 F.2d 1496, 1508
(9th Cir. 1990) (citations omitted) ("[T]o establish their
substantive due process claim, appellants must show that the
City's decision to deny tentative map approval and to refuse an
extension of the conditional use permit was arbitrary and
irrational"); Brady v. Town of Colchester,
863 F.2d 205, 215 (2d
Cir. 1988) (declaring that substantive due process assures
property owner's right to be free from arbitrary or irrational
zoning actions); Bello v. Walker,
840 F.2d 1124, 1129 (3d Cir.)
(determining that substantive due process rights may be violated
when municipal council arbitrarily and irrationally interferes
with building permit process), cert. denied,
488 U.S. 851,
109 S.
Ct. 134,
102 L. Ed 2d 107, and cert. denied,
488 U.S. 868,
109 S. Ct. 176,
102 L. Ed.2d 145 (1988); Scott v. Greenville County,
716 F.2d 1409, 1419 (4th Cir. 1983) ("Arbitrariness, abuse of
discretion, caprice or unfairness giv[e] rise to a constitutional
claim [of denial of substantive due process in state permit
processing actions]").
It is a mistake, however, to equate the concept of
"arbitrary and irrational" governmental land use decisions with
the substantive component of the Due Process Clause of the
Fourteenth Amendment. In the land use context, the phrases
"arbitrary and irrational" or "capricious" are often shorthand
expressions for a standard of review that asks whether there are
sufficient facts in the record to support the agency's action or
whether the agency has followed its legislative mandate. Bow &
Arrow Manor v. Town of West Orange,
63 N.J. 335, 343 (1973).
In Anastasio v. Planning Bd. of West Orange,
209 N.J. Super. 499, 521-22, certif. denied,
107 N.J. 46, (1986), the Appellate
Division expressly declined to find a due process violation and
award damages under § 1983 because a township planning board's
rejection of a real estate developer's application for a
development plan "was arbitrary and capricious."See footnote 4 The Anastasio
court observed that
[f]requently in our law a court on an appeal
from action of a public agency will determine
if the agency acted arbitrarily or
capriciously. Accordingly while the words
"arbitrary and capricious" may sound harsh,
they are simply the standard of appellate
review in particular cases.
See also Silverman v. Rent Leveling Bd., 277 N.J. Super. 524, 538 (App. Div. 1994) (agreeing that it would be improper to hold municipal agency liable under § 1983 merely for mistakenly exercising power under state law), certif. denied, 139 N.J. 443 (1995). It is for this reason that Chief Judge Arnold cautioned that substantive due process protections should be reserved for "truly irrational" governmental abuses that bear no relationship to the merits of the pending matter. Judge Arnold offers as an example of such truly irrational conduct a governmental body that
"flips a coin" to make a decision. Lemke, supra, 846 F.
2d at 472
(Arnold, J., concurring). Although Baltarzuk's conduct during
the rent proceedings may have violated some state law, it was not
"truly irrational." Baltarzuk appears to have mistakenly
believed that it was his duty to serve as a tenants' advocate.
From this mistaken premise, Baltarzuk's actions were rational.
Moreover, all of Baltarzuk's actions were related to the merits
of the rent proceeding. The Board's original determinations
about the eligibility, as capital improvements, of things such as
a "Bob-Cat" loader were at least debatable. And Baltarzuk was
correct that the base rent of one of the tenants was misstated.
We believe that the contrary decisions (giving broad reach
to the doctrine of substantive due process) limit their focus to
the words of the Supreme Court that the Due Process Clause was
"intended to secure the individual from the arbitrary exercise of
the powers of government," Daniels, supra, 474 U.S. at 331, 106
S. Ct. at 665, 88 L. Ed.
2d at 668 (quotations omitted), without
considering the degree of the abuse of power that must be
displayed before invoking the substantive component of that
particular clause. Irvine, supra, 347 U.S. at 133, 74 S. Ct. at
383, 98 L. Ed. at 569.
"The lower courts' differing approaches to the treatment of
substantive due process in these areas suggest the obvious need
for Supreme Court clarification." Levinson, supra,
16 U. Dayton
L. Rev. at 318. Until that clarification, however, we seriously
doubt that the Supreme Court will find a substantive due process
violation to exist when a governmental body denies a property
right by conduct that is "arbitrary or irrational" under state
law but neither shocking to the conscience of a court in the
sense of being a departure from civilized norms of governance,
nor offensive to human dignity. See Rochin, supra, 342 U.S. at
172-174, 72 S. Ct. at 210, 96 L. Ed. at 190-91.
Analytically, the Rivkins' case is much closer to a procedural due process claim. Plaintiffs contend that the presence of a tainted board member deprived them of property, a fair rate of return on their investment, without due process of law. Their case amounts to an allegation that the State failed to furnish an impartial tribunal, which "is a matter of procedural, not substantive, due process." Holloway v. Walker, 784 F.2d 1287, 1293 (5th Cir.), cert. denied, 479 U.S. 984, 107 S. Ct. 571, 93 L. Ed.2d 576 (1986); accord Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 1613, 64 L. Ed.2d 182, 188 (1980) (stating that "requirement of neutrality in adjudicative proceedings safeguards the . . . concerns of procedural due process").
The trial court and Appellate Division found that Baltarzuk
tainted the deliberations of the Board by participating in the
hearings with a preconceived bias against the Rivkins'
application, behaving as an advocate for the tenants during the
hearing, and relying on evidence outside the record. Rivkin,
supra, 277 N.J. Super. at 561. Although Baltarzuk maintained
that he was not prejudiced and should not have been disqualified,
we accept the lower courts' findings for purposes of this appeal.
More is required to sustain a claim under
42 U.S.C. §1983,
however, than a demonstration that a partial board member
participated in the regulatory proceedings. Parratt, supra, held
that "for a deprivation of property to violate the Due Process
Clause of the Fourteenth Amendment it must occur without the
opportunity to be heard at a meaningful time and in a meaningful
manner." Karen M. Blum, Applying the Parratt/Hudson Doctrine:
Defining the Scope of the Logan Established State Procedure
Exception and Determining the Adequacy of State Postdeprivation
Remedies, 13 Hastings Const. L.Q. 695, 698-99 (1986) [hereinafter
Blum]. (Parts of Parratt not relevant here were overruled by
Daniels v. Williams, supra,
474 U.S. 327,
106 S. Ct. 662,
88 L.
Ed.2d 662 (1986).) To avoid violating the Due Process Clause,
the State must have afforded the Rivkins a fair hearing on their
claims at a meaningful time.
While it is preferable for states to provide a pre-deprivation hearing whenever practicable, the Supreme Court has
"rejected the proposition that `at a meaningful time and in a
meaningful manner' always requires the State to provide a hearing
prior to the initial deprivation of property." Parratt, supra,
451 U.S. at 540, 101 S. Ct. at 1915, 68 L. Ed.
2d at 432
(footnote omitted). At times, for a state to provide any
meaningful pre-deprivation process simply may not be possible.
Such circumstances arise if a state must take immediate action,
or if the loss of property is caused by the unpredictable conduct
of state officials. Watts v. Burkhart,
854 F.2d 839, 842 (6th
Cir. 1988). The Supreme Court has acknowledged that
the timing and nature of the required hearing
"will depend on the appropriate accommodation
of the competing interests involved." These
include the importance of the private
interest and the length or finality of the
deprivation, the likelihood of governmental
error, and the magnitude of the governmental
interests involved.
[Logan v. Zimmerman Brush Co.,
455 U.S. 422,
434,
102 S. Ct. 1148, 1157,
71 L. Ed.2d 265,
277 (1982) (citations and footnote omitted).]
Post-deprivation remedies are most likely to be deemed satisfactory substitutes for pre-deprivation process when a meaningful pre-deprivation hearing is impracticable, and property rather than a life or liberty interest is at stake. See Blum, supra, 13 Hastings Const. L.Q. at 699-700. Parratt v. Taylor illustrates the point. That case involved an inmate at a Nebraska prison who ordered a hobby kit valued at $23.50. The kit was lost after being delivered to the prison. The inmate brought suit in the United States District Court under § 1983,
claiming that he had been deprived of his property without due
process of law. Parratt, supra, 451 U.S. at 529, 101 S. Ct. at
1910, 68 L. Ed.
2d at 425. The district court granted summary
judgment in favor of the inmate and the Eighth Circuit affirmed.
In reversing these lower court decisions, the Supreme Court
asserted that accepting plaintiff's position would turn every
alleged injury inflicted by a state official acting under color
of law into a violation of the Fourteenth Amendment cognizable
under § 1983. Parratt, supra, 451 U.S. at 544, 101 S. Ct. at
1917, 68 L. Ed.
2d at 434.
The Supreme Court fit Parratt within the framework of cases
in which pre-deprivation process was impracticable because the
plaintiff was deprived of property as the result of a random and
unauthorized act of a state employee. "In such a case, the loss
is not a result of some established state procedure and the state
cannot predict precisely when the loss will occur." Id. at 541,
101 S. Ct. at 1916, 68 L. Ed.
2d at 432. Thus, an adequate post-deprivation hearing will satisfy the requirements of the Due
Process Clause. Hudson v. Palmer,
468 U.S. 517,
104 S. Ct. 3194,
82 L. Ed.2d 393 (1984), reaffirmed Parratt and extended this
post-deprivation doctrine to cases involving the intentional
deprivation of property by a state official. The Court held that
an inmate whose personal property was intentionally destroyed by
a corrections officer during a search for contraband could not
sustain a § 1983 claim because adequate state tort remedies were
available to redress the deprivation.
The Parratt doctrine does not apply..and pre-deprivation
process is required..when deprivations without procedural
fairness are predictable in nature. Frederic S. Schwartz, The
Postdeprivation Remedy Doctrine of Parratt v. Taylor and its
Application to Cases of Land Use Regulation,
21 Ga. L. Rev. 601,
607 (1987) [hereinafter Schwartz]. In Logan v. Zimmerman Brush
Co.,
455 U.S. 422,
102 S. Ct. 1148,
71 L. Ed.2d 265 (1982),
plaintiff's employment discrimination claim expired without
notice to him when the Illinois Fair Employment Practices
Commission failed to convene a fact-finding conference within the
120-day period mandated by Illinois law. Plaintiff brought suit
under § 1983, asserting that the state's inaction denied him his
constitutional right to due process. The Supreme Court held that
the existence of a post-deprivation state remedy..there, an
independent tort action..is constitutionally inadequate when the
deprivation of property results from an established state
procedure. The Court stated:
It is the state system itself that destroys a
claimant's property interest, by operation of
law, whenever the Commission fails to convene
a timely conference. . . . Logan is
challenging not the Commission's error, but
the "established state procedure" that
destroys his entitlement without according
him proper procedural safeguards.
[Logan, supra, 455 U.S. at 436, 102 S. Ct. at
1158, 71 L. Ed.
2d at 278.]
Thus, a threshold question in any procedural due process
case is whether the deprivation was caused by random and
unauthorized conduct or whether it resulted from an established
state procedure.
The Appellate Division held that Baltarzuk's actions as a
member of the Rent Leveling Board constituted random and
unauthorized conduct within the meaning of the Parratt doctrine.
That characterization applies to behavior of state officials that
is not reasonably anticipated, and therefore cannot practicably
be addressed by the provision of pre-deprivation remedies. The
Supreme Court's decision in Zinermon v. Burch,
494 U.S. 113,
110 S. Ct. 975,
108 L. Ed.2d 100 (1990), explains the concepts. In
Zinermon, the Court held that the Parratt doctrine did not serve
to bar plaintiff's claim that his due process rights were
violated when state officials admitted him to a state mental
hospital as a voluntary patient even though he was incompetent to
give informed consent to his admission. Because the flaw in
Florida's procedure (permitting an incompetent to commit himself)
was a structural one that the government could clearly
anticipate, plaintiff's claim fit within the Logan doctrine
rather than the Parratt/Hudson doctrine. Thus, the availability
of post-deprivation process did not serve to defeat plaintiff's §
1983 claim.
The Rivkins maintain that even if Baltarzuk's actions were
random and unauthorized, and therefore unpredictable, the Rent
Leveling Board's were not. They contend that the Board as
policy-maker established the deficient state procedures by
permitting Baltarzuk to participate in the hearing even after he
had demonstrated an inability to act impartially. This Board
conduct would, in their view, obviate the need to conduct a
Parratt analysis by placing the case within the Logan/Zinermon
framework.
Although New Jersey law does proscribe conflicts of interest
on the part of public officials, the assumption of our law is
that members will disqualify themselves, not that a municipal
board will act affirmatively to disqualify its own members.
Whenever a substantial question is raised as
to the disinterestedness of one of several
officials sitting on a matter, and the other
officials can take care of the case, it
usually is just as well for the official in
question to withdraw therefrom, so that not
the faintest shadow be cast on the integrity
of the determination.
[Hochberg v. Freehold Racing Ass'n, 40 N.J.
Super. 276, 284 (App. Div. 1956).]
See Griggs v. Princeton Borough,
33 N.J. 207, 222 (1960) (setting
aside planning board's actions because board member's employer
had financial interest in decisions of board). In the Rivkins'
case, one Board member did disqualify himself when the Board
attorney pointed out a possible conflict. The Board attorney did
attempt to chasten Baltarzuk. In response, he stoutly maintained
that he was not biased, and was simply conducting a searching
investigation of the case."just asking for correct figures."
Moreover, the available federal precedent does not draw this
proffered distinction between Baltarzuk's conduct and the Board's
collective conduct and thereby remove the case from the
strictures of the Parratt doctrine. Recall that in Logan the
Court stated, "Logan is challenging not the Commission's error,
but the `established state procedure' that destroys his
entitlement without according him proper procedural safeguards."
Logan, supra, 455 U.S. at 436, 102 S. Ct. at 1158, 71 L. Ed.
2d
at 278. To hold that the Board's error created an established
state procedure would "convert every departure from established
administrative procedures into a violation of the Fourteenth
Amendment, cognizable under § 1983." PFZ Properties, supra, 928
F.
2d at 31.
Admittedly, the analogy to Parratt is not perfect. Parratt
involved the conduct of a state employee..this case involves the
conduct of a public board or body that is, in itself, an organ of
state government. Nor does this case involve a denial of a pre-deprivation hearing..there was a pre-deprivation hearing but that
hearing was flawed. Still we believe that the analogy to Parratt
is appropriate. "The requirements of procedural due process are
`norms addressed to legal systems as a whole rather than to
individual government actors.'" Schwartz, supra,
21 Ga. L. Rev.
at 611 (quoting Laurence H. Tribe, American Constitutional Law §
18-4, at 1162 n.15 (1st ed. 1978)). "Therefore, to determine
whether a constitutional violation has occurred, it is necessary
to ask what process the State provided, and whether it was
constitutionally adequate." Zinermon, supra, 494 U.S. at 126,
110 S. Ct. at 983, 108 L. Ed.
2d at 114. We must look at the
legal system as a whole.
Amicus Hudson County Taxpayers' Association acknowledges
that most municipal boards are comprised of inexpert, part-time
laypersons who operate in a highly charged political atmosphere.
As a result, judicial review is an integral part of the State's
governance of its local boards and bodies. For reasons discussed
more fully in Part B hereof, the New Jersey Constitution
guarantees government under law at the local level. This is
especially true in the context of land use law in which judicial
review ensures full accountability. The qualitative difference
between procedural unfairness in a case such as this and that in
Logan and Zinermon is that the state action in those cases was
both institutional (the procedures were built-in) and final (in
Logan, plaintiff's lawsuit "was forever barred"; in Zinermon, the
patient's liberty was irretrievably lost).
And even though the ordinance creating the Rent Leveling
Board calls for the participation of a tenant representative,
this State system itself neither caused the deprivation of the
Rivkins' property nor itself amounts to a per se violation of the
Rivkins' procedural due process rights. In fact, the ordinance
requires the Board to base its determination on the reasonable,
credible evidence before it. Rather, it was the unpredictable
behavior of the tenant representative, which went well beyond the
bounds contemplated by the ordinance, that spawned the Rivkins'
problems. When Baltarzuk tainted the Board's proceedings by
behaving as a tenant advocate and introducing evidence from
outside the record, he was acting on his own initiative without
State authorization. The State is not required to anticipate
random and unauthorized violations of its own constitutionally
adequate procedures. PFZ Properties, supra, 928 F.
2d at 31. Nor
may a state effectively anticipate random and unauthorized
violations of established state procedures by its lesser boards
or bodies in the land use context. Thus, the deprivation..the
delay in receiving a fair rental allowance..will not be deemed to
be in violation of the Due Process Clause if adequate post-deprivation remedies were available to the Rivkins. Parratt,
supra, 451 U.S. at 539, 101 S. Ct. at 1915, 94 L. Ed.
2d at 431.
The post-deprivation remedy that the State furnished to the Rivkins was an action in lieu of prerogative writs. The 1947 New Jersey Constitution preserved the substance of common law prerogative writ review by permitting parties to seek "review, hearing and relief" in the Superior Court of all actions of municipal agencies. N.J. Const. art. VI, § 5, ¶ 4. New Jersey Court Rule 4:69 implements this constitutional provision. A
court may set aside a municipal board decision if it is shown to
be arbitrary, capricious or unreasonable, not supported in the
evidence, or otherwise contrary to law. Reid v. Township of
Hazlet,
198 N.J. Super. 229 (App. Div.), certif. denied,
101 N.J. 262 (1985); Green Acres of Verona v. Borough of Verona,
146 N.J.
Super. 468, 470 (App. Div. 1977).
Plaintiffs contend that the action in lieu of prerogative
writs is not an adequate remedy because it does not enable them
to recover damages, attorney's fees or costs. In Parratt, the
Court concluded, "Although the state remedies may not provide the
respondent with all the relief which may have been available if
he could have proceeded under § 1983, that does not mean that the
state remedies are not adequate to satisfy the requirements of
due process." Parratt, supra, 451 U.S. at 544, 101 S. Ct. at
1917, 68 L. Ed.
2d at 434. Accord Ayers v. Jackson Township,
202 N.J. Super. 106, 128-29 (App. Div. 1985) ("[A] state remedy may
be sufficient, even if not as complete as that allowed under 42
U.S.C. § 1983."), aff'd in part and rev'd in part,
106 N.J. 557
(1987).
Plaintiffs' action in lieu of prerogative writs provided an
adequate state post-deprivation remedy as required by the Parratt
doctrine. The remedies provided were quite complete. After
reviewing the proceedings and decision of the Rent Leveling
Board, the trial court found that Baltarzuk's improper conduct
had prejudiced the Rivkins. The court remanded for a new hearing
and barred Baltarzuk from participating in the case. After
rehearing the matter, the Board awarded plaintiffs an additional
$25,089.67 in qualifying capital improvements. The total of the
two sums approved by the Board amounted to 77 per cent of the
Rivkins' original request. The additional rent increase
redressed all of the economic claims that plaintiffs possessed.
In a second prerogative writ action, the trial court upheld the
action of the Dover Board as a fair and reasonable assessment of
the proofs. As the Third Circuit concluded in a case in which
plaintiff ultimately received its desired dance hall license
through the appeal process, "[D]elay alone does not [ordinarily]
create a procedural due process violation." Midnight Sessions
Ltd. v. City of Philadelphia,
945 F.2d 667, 682 (3d Cir. 1991),
cert. denied,
503 U.S. 984,
112 S. Ct. 1668,
118 L. Ed.2d 389
(1992).
The remaining question is whether the absence of a specific
provision authorizing attorney's fees to prevailing parties in
prerogative writ actions causes the state remedy to be
constitutionally inadequate. Parratt makes clear that state
remedies need not provide all the relief that would have been
available if the plaintiff were successful under § 1983. Thus,
the state remedies would not be considered inadequate simply
because they did not allow for the recovery of attorney's fees.
Weimer v. Amen,
870 F.2d 1400, 1405 (8th Cir. 1989); Wilson v.
Beebe,
770 F.2d 578, 584 (6th Cir. 1985).See footnote 5
In addition, New Jersey has recently increased judicial
authority to allow counsel fees to the prevailing party in a
civil action. N.J.S.A. 2A:15-59.1. While we do not decide the
issue in this case, it appears a permissible interpretation to
conclude that a court may award counsel fees to the prevailing
party when a local board "without any reasonable basis in law or
equity" refuses to accede to a clearly meritorious appeal. Ibid.
A proposed Rule of Court would supplement the relief provided in
the statute. See Proposed Rule Amendment on Frivolous
Litigation,
143 N.J.L.J. 370 (Jan. 29, 1996).
Because the State provided an adequate post-deprivation
remedy to redress the aberrant conduct of the board member or the
Board, plaintiffs' rights to procedural due process were not
violated. Therefore, plaintiffs cannot sustain an action on that
basis for damages and attorney's fees under § 1983.
We here come to the analysis that may best reflect the core values of 42 U.S.C. §1983. Obviously, claimants may not escape the teaching of Parratt and Hudson