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Deprivation of Due Process Civil Rights Claims Under 42 U.S.C. § 1983 in Colorado Courts
The due process clause of the Fourteenth Amendment was incorporated into the U.S. Constitution to ensure that state governments operate lawfully and provide fair procedures before taking governmental action against an individual or person. Specifically, the Fourteenth Amendment’s due process clause provides:
No State shall make or enforce any law which shall . . . deprive any person of life, liberty, or property without due process of law
See U.S. Const. amend. XIV, § 1. There are two main components of the Fourth Amendment’s due process clause: procedural due process and substantive due process. Procedural due process ensures a state will not deprive a party of life, liberty, or property without employing fair procedures to reach a decision.
In contrast, substantive due process ensures the state will not deprive a party of certain, important fundamental rights at all, regardless of the procedures used; and, where fundamental rights are not at issue, substantive due process protects against arbitrary and oppressive government action. See Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 (10th Cir. 2000).
Importantly, because the Fourteenth Amendment’s due process clause employs the wording “any person” as opposed to “any citizen,” due process applies to all persons within the U.S., regardless of their citizenship. Further, the phrase “any person” has been interpreted to include natural persons, such as individuals, and legal persons such, as business entities; thus, corporations and companies are entitled to Fourteenth Amendment due process protections as well. Although, business entities are not allowed the full panoply of protections under the due process clause, the U.S. Supreme Court has selectively determined which due process rights a corporation may exercise. See Noble v. Union River Logging Railroad Co., 147 U.S. 165, 176 (1893).
Notably, while the Fifth Amendment of the U.S. Constitution also contains a due process clause virtually identical to the Fourteenth Amendment’s due process clause, for purposes of civil rights claims under 42 U.S.C §1983, the Fourteenth Amendment’s due process clause is the most frequently cited and relied upon.
This is because 42 U.S.C. § 1983 allows civil actions to be brought against state actors for deprivation of constitutional rights and, while the Fifth Amendment’s due process clause applies to the federal government, the Fourteenth Amendment’s due process clause applies to state governments. Thus, the Fourteenth Amendment is the more appropriate vehicle for bringing due process claims against state actors. This article focuses on 42 U.S.C. § 1983 deprivation of due process claims under the Fourteenth Amendment.
Procedural Due Process Civil Rights Claims under 42 U.S.C. § 1983 in Colorado Courts
As discussed above, one of the two components of the Fourteenth Amendment’s due process clause is procedural due process. Put simply, procedural due process is the requirement that an affected party have some kind of notice and an opportunity to be heard before a governmental decision is made against him or her. See Mathews v. Eldridge, 424 U.S. 319 (1976).
In order to sustain a Fourteenth Amendment deprivation of procedural due process claim, the plaintiff must establish:
(1) the existence of a constitutionally cognizable liberty or property interest; and
(2) a deprivation of that interest without an appropriate level of process or procedural safeguards.
In analyzing the first element, whether the plaintiff a cognizable liberty or property interest, courts look to independent sources. That is, property interests are not created by the U.S. Constitution itself but, rather, are derived from laws, rules or “understandings that secure certain benefits and that support claims of entitlement to those benefits.” Examples of independent legal sources where constitutionally protected liberty and property interests can stem from include state statutes, ordinances, contracts, implied contracts, and rules and understandings developed by state officials. See Heutzenroeder v. Mesa Cty. Valley School, 391 Fed. Appx. 688, 691 (10th Cir. 2010).
To be constitutionally cognizable, a liberty or property interest must be both specific and presently enforceable. That is, the liberty or property interest must be more than an abstract need or desire; the plaintiff must have a legitimate claim of entitlement to it. Examples of cognizable property interests that courts have recognized include unemployment and social security benefits, access to welfare, and rights granted by local governments.
While many different types of property interests exist, in general, a cognizable property interest is more likely to be found where the procedures in question limit the amount of discretion involved to achieve a particular outcome. In other words, a particular interest will be more likely to be seen as an entitlement, and less as a discretionary grant, where the procedures direct a particular outcome and limit the amount of discretion involved in coming to that outcome. See Nichols v. Bd. of County Comm’rs, 506 F.3d 962, 970 (10th Cir. 2007); Doyle v. Oka. Bar Ass’n, 998 F.2d 1559, 1569 (10th Cir. 1993).
One important note, however, is that there is no cognizable property interest in procedure only. That is, where the alleged interest is purely that a particular procedure was not followed, and there is no actual deprivation of liberty or property, the procedure itself cannot be used to establish a cognizable liberty or property interest. Put in other words, one cannot complain of a procedural violation under the Fourteenth Amendment’s due process clause where there is no underlying property that procedure applies to. See Hillside Cmty. Church v. Olson, 58 P.3d 1021 (Colo.2002).
If there is a cognizable liberty or property interest at issue, then analysis turns to the second element, whether a deprivation of that interest occurred without appropriate procedural safeguards. Notably, however, while courts turn to independent sources, such as state law, for determining whether a cognizable property interest exists; they turn to federal constitutional law to determine the second, appropriate level of process element. In analyzing this second element, courts apply a 3 factor balancing test to determine if sufficient process was provided. Specifically, the courts weigh:
(1) the private interest that will be affected by the governmental action at issue;
(2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and
(3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
Importantly, whether any particular process satisfies Fourteenth Amendment due process requirements is a flexible analysis dependent on what the circumstances of each particular situation demands. The very nature and requirements of due process negate any concept of inflexible procedures universally applicable to every imaginable situation. See Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78 (1978).
Similarly, because constitutional requirements and not state law govern whether a particular process is sufficient, a procedural violation of state or administrative law is insufficient in and of itself to constitute a procedural due process violation. That is, even if state or administrative procedures are not followed, Fourteenth Amendment due process requirements still may be met if sufficient notice and an opportunity to be heard are provided. See Comprehensive Addiction Treatment Center, Inc. v. Leslea, Civil Action No. 11-cv-03417-CMA-MJW (D. Colo. Jan. 31, 2013).
Along these same lines, to fulfill notice requirements, constitutional due process requires only that parties be informed in a matter reasonably calculated to apprise them of the pending action and provide an opportunity to respond; that is, there are no requirements that notice be given in a specific manner at a specific time and in a specific form. See Rector v. City and County of Denver, 348 F.3d 935 (10th Cir. 2003)
Further, in determining what process is due before a cognizable liberty or property interest is taken away, account must be taken of the length and finality of the deprivation. That is, temporary and short deprivations of liberty or property interests may not require as substantive or as thorough of procedural protections. See Kirkland v. St. Vrain Valley Sch. Dist. No. RE-1J, 464 F.3d 1182, 1192 (10th Cir. 2006)
Additionally, the U.S. Supreme Court generally has held that due process requires some kind of hearing before the state deprives a person of liberty or property. Specifically, the U.S. Supreme Court has stated that where the government feasibly can provide a pre-deprivation hearing before taking property, it generally must do so, regardless of the adequacy of a post-deprivation remedy. However, in some circumstances, where quick action by the government is needed or a property deprivation is otherwise reasonably unforeseeable, a post-deprivation hearing or remedy can satisfy due process requirements. See Zinermon v. Burch, 494 U.S. 113 (1990); Cleveland Bd. of Educ. V. Loudermill, 470 U.S. 532 (1985).
Furthermore, for procedural due process claims involving administrative decisions, when a state affords reasonable remedies to rectify legal errors by local administrative bodies, including avenues of appeal, allegations that the local administrative body reached its decision on erroneous reasoning are not sufficient to establish a procedural due process claim. That is, state remedies may provide appropriate procedural remedies as to negate a due process violation. See Hillside Cmty. Church v. Olson, 58 P.3d 1021 (Colo.2002); Sundheim v. Board of County Com’rs of Douglas County, 904 P.2d 1337 (1995).
Substantive Due Process Civil Rights Claims under 42 U.S.C. § 1983 in Colorado Courts
The second component of the Fourteenth Amendment’s due process clause, substantive due process, protects certain inalienable rights and bars certain governmental actions regardless of the procedures used to implement those actions. More specifically, the U.S. Supreme Court has applied substantive due process in two different manners, one as the basis for recognizing fundamental rights, that is, rights that cannot be deprived no matter what; and the other as a basis for protecting against especially egregious governmental action. Each of these aspects will be discussed in sequence below.
With respect to the first basis, fundamental rights absolutely protected from governmental interference, substantive due process narrowly includes only those “rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition,” and thus are “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” See 211 Eighth, LLC v. Town of Carbondale, 922 F.Supp.2d 1174 (D. Colo. 2013).
Specific fundamental rights the U.S. Supreme Court has recognized include and are focused on highly intimate issues such as bodily integrity, the right to marry, the right to participate in religion, the right to have children, the right to raise children, and sexuality. Notably, because guideposts for responsible decision making for fundamental rights are scarce and open-ended, the U.S. Supreme Court has always been reluctant to broadly construe fundamental right protections under substantive due process. Instead, only those rights most basic to our way of life and concept of liberty and democracy are protected. See McDonald v. City of Chicago, Illinois, 561 U.S. 742, 862-83 (2010).
With respect to the second basis for substantive due process protections, involving the manner of government action, due process requires only that termination of a protected interest not be arbitrary, capricious, or without a rational basis. Indeed, the standard for an alleged violation of substantive due process of this type is high and focuses on whether the challenged government actions shocks the conscience. See Daniels v. Williams, 474 U.S. 327 (1986); Hennigh v. City of Shawnee, 155 F.3d 1249, 1257 (10th Cir.1998).
That is, negligent governmental action is not sufficient to arise to a substantive due process violation and a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power. The plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that it is truly conscience shocking. See Ward v. Anderson, 494 F.3d 929 (10th Cir. 2007).
Examples of Deprivation of Due Process Civil Rights Cases Brought in Colorado Courts Under 42 U.S.C. § 1983
In Onyx Properties LLC v. Board of County Commissioners, 838 F.3d 1039 (10th Cir. 2016), the local land use board had lost zoning maps from 1983 and attempted to recreate those maps from historical information; however, the recreated maps were never officially adopted at public proceedings. The plaintiffs, relying on the recreated maps without being informed they had never been officially adopted, sought and paid the fees to subdivide and rezone their property in accordance with the recreated maps. Once they found out the maps had not been adopted, the plaintiffs brought substantive and procedural due process claims in relation to the land use board’s enforcement of those maps. The 10th Circuit affirmed dismissal of the due process claims on the basis that the maps were legislative in nature; that there is no right to a hearing for legislative enactments; and, thus, even though state enactment procedures had not been followed, minimum constitutional requirements for due process were met.
In Moreland Properties, LLC v. City of Thornton, 559 F.Supp.2d 1133 (D. Colo. 2008), the trial court found that zoning classifications qualified as a cognizable, protected property interests and a municipality’s passage of an ordinance that changed those zoning classifications qualified as a deprivation of procedural due process. Specifically, the trial court found the notices published by the municipality were insufficient to reasonably convey information that would put affected parties on notice, that the notices only generally indicated changes to the zoning code were being considered and did not indicate permitted uses might be eliminated entirely, and further found that providing specific notice to affected property owners was not so burdensome as to be prohibitive. Accordingly, the court entered judgment in favor of the plaintiff on its 42 U.S.C. § 1983 deprivation of due process claim.
In Eason v. Board of County Com’rs of County of Boulder, 70 P.3d 600 (Colo. App. 2003), the Colorado Court of Appeals upheld a due process violation judgment where the county had previously indicated to the plaintiff that semi-trailers could be used for self-storage, the plaintiff then made significant investments in developing a self-storage business, and the county subsequently sent the plaintiff a letter indicating that his building permit had been revoked because the county’s interpretation of the zoning law had changed and semi-trailers could no longer be used as a self-storage business. The Colorado Court of Appeals held that the plaintiff had a property interest in the initially approved use and that the county’s letter constituted a deprivation of procedural due process because no neutral-decision making form was provided and, instead, only a letter with a unilateral finding had been issued.
In Jackson v. State, 966 P.2d 1046 (Colo. 1998), the Colorado Supreme Court upheld a trial court’s finding that suspension of a sheriff’s pay was a deprivation of procedural due process because of the unique circumstances under the Colorado Constitution where sheriff pay is mandated. That is, the Colorado Supreme Court found that because sheriff pay was mandated by the Colorado Constitution, the plaintiff, an elected Morgan County sheriff, had a protected cognizable property interest in his pay and the withholding of his salary without a hearing, while he was told to complete training mandated by state statutes, was a deprivation of due process. Notably, the trial court had found the training requirements mandated by state statute in conflict with the Colorado Constitution and, thus, not applicable to the sheriff.
In Sundheim v. Board of County Com’rs of Douglas County, 904 P.2d 1337 (Colo. App. 1995), the Colorado Court of Appeals found allegations that a local zoning body’s decision was arbitrary and irrational was sufficient to plead a substantive due process claim and, thus, that particular claim could proceed. Specifically, the plaintiff had alleged that the county commissioners applied unusual standards of review to their special use application; that those standards were unrelated to the merits of the application; and, instead, were based upon personal considerations unconnected with legitimate governmental objectives.
© 2018 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.