Agenda - Planning Commission - 10/06/2011

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August 10, 2011 I Volume 51 No. 15 Zoning Bulletin The United States Court of Appeals, First Circuit, held: (1) that the post - deprivation remedies available to San Geronimo could not be sufficient to satisfy due process; but that (2) the Defendants were entitled to qualified im- munity on San Geronimo's due process claim. The court explained that for San Geronimo to establish a procedural due process claim under 42 U.S.C.A. § 1983, it had to allege that the De- fendants: (a) deprived it of a property interest that is recognized under state law; (b) while acting under color of state law; and (c) without providing constitutionally adequate process (i.e., without due process of law). The court further explained that, "[t]ypically, due process requires that an oppor- tunity for a hearing be provided prior to the deprivation." However, "`the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process' may render a postdeprivation remedy constitutionally adequate in some circumstances." Here, all parties agreed that San Geronimo was denied an adequate hear- ing prior to being deprived of its permits (which constituted a property inter- est). The Defendants, however, argued that San Geronimo was not unconsti- tutionally denied due process because, here, postdeprivation remedies were sufficient. The First Circuit disagreed. The court acknowledged the Parratt-Hudson doctrine. Again, that doc- trine provides that: where "a deprivation of property interest is occasioned by random and unauthorized conduct by state officials, ... the due process inquiry is limited to the issue of adequacy of postdeprivation remedies pro- vided by the state." However, the court emphasized that doctrine "has no application where a loss is the result of an `established state procedure,' even if due in part to negligent official conduct." It also, said the court, has no ap- plication "where a deprivation of a liberty or property interest occurs under the auspices of a state law that gives government officials `broad power and little guidance"' when: (1) the deprivation was not "unpredictable"; (2) a predeprivation process was not impossible; and (3) the defendants "could not rightly characterize their conduct as `unauthorized' ... because [their powers were] delegated to them [under State law]." The court found the latter rationale applied here, and thus, the postdepriva- tion remedies available to San Geronimo could not be sufficient to satisfy due process. Here, ARPE chose an "emergency procedure," which the court found departed from state law protocols. The Parratt-Hudson doctrine did not apply because the Defendants' actions were not "random and unauthorized." Rath- er: (1) the point at which San Geronimo would be deprived of property was predictable —"it was the point where [the ARPE] chose between regular and emergency procedures"; (2) additional processes could have been implemented "to limit[] and guide[]' the defendants' power to effect deprivations of proper- ty under the emergency adjudicatory procedure"; and (3) the Defendants could not rightly claim their conduct as "unauthorized" because ARPE purported to act under the authority given to it for emergency procedures. 6 © 2011 Thomson Reuters