Lundblad v. Celeste

RYAN, Circuit Judge,

concurring in part and dissenting in part:

Because my brother correctly resolves the questions presented by plaintiff’s first amendment claim and his claim against defendant James, I join parts I, II-B, and III of the court’s opinion. However, I must respectfully dissent from my brother’s treatment of the plaintiff’s equal protection claim, his procedural due process claim, and the trial court’s imposition of sanctions against plaintiff’s counsel.

I.

The court concludes that plaintiff has stated a claim under 42 U.S.C. § 1983 for violation of his rights under the equal protection clause of the fourteenth amendment because he has alleged that defendants denied him the golf course contract solely because he was not a Democrat. The court is not troubled by the defendants’ subsequent decision to run the golf course themselves pursuant to O.R.C. § 1501.29 (1986). Were we writing on a clean slate, I might agree with my brother’s reasoning and conclusion. Unfortunately, however, the Supreme Court’s decision in Palmer v. Thompson, 403 U.S. 217 , 91 S.Ct. 1940 , 29 L.Ed.2d 438 (1971) precludes that result.

*1106 In Palmer , plaintiffs brought an equal protection claim against the city of Jackson, Mississippi after city officials had closed the public swimming pool rather than desegregate it. The Court refused to find an equal protection violation because the decision treated blacks and whites identically: neither could use the pool. Id. at 220 , 91 S.Ct. at 1942 . In this case, defendants’ decision similarly treats Democrats and Republicans identically: neither may operate the golf course.

My brother offers two reasons for ignoring Palmer . First, he argues that the decision of defendants to operate the golf course themselves “was nothing more than an indirect way of obtaining the same result — rendering plaintiff ineligible to operate the golf course because of his political affiliation.” That may very well be so. But the decision at issue in Palmer was also unquestionably an indirect way of obtaining the same result — keeping blacks out of public pools in Jackson. Counsel for the city conceded at oral argument “that the desegregation ruling ... precipitated the city’s decision to cease furnishing public swimming facilities to its citizens.” Id. at 254 , 91 S.Ct. at 1959 (White, J., dissenting). Thus, there is no distinction on this point between the case at bar and Palmer .

We are also told that this case is distinct from Palmer in that the decision there was taken by a legislative body whereas the decision at issue here was taken by executive officials. My brother cites no authority for the proposition that Palmer applies only to statutes and not executive actions, and I could find none. Instead, the court explains that the judiciary may not be precluded from inspecting the motives of non-legislators. This, of course, is true. But it does not change the fact that executive officials may not be held liable under the equal protection clause unless they actually discriminate against a protected group. Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976), does not stand for the proposition that discriminatory intent, without discriminatory action, establishes a violation of the equal protection clause; rather, it holds that both are required. Id. at 239 , 96 S.Ct. at 2047 .

Defendants’ actions in this case may very well have been designed to keep Republicans out of the state’s golf course business. But these actions did treat Democrats and Republicans alike. While I sympathize with my brother’s desire to preclude conduct of the sort alleged here, this court lacks the authority reach that conclusion. We must respect the Supreme Court’s determination, right or wrong, in Palmer .

II.

I also disagree with the court’s conclusion that plaintiff does not state a claim for violation of his rights under the due process clause. The court holds that the availability of adequate post-deprivation remedies under Ohio law precludes plaintiff’s due process claim. This reasoning ignores the well established principle that the requirement that a plaintiff seek post-deprivation remedies “is inapplicable when ‘a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.’ ” Spruytte v. Walters, 753 F.2d 498, 509 (6th Cir.1985), cert. denied, 474 U.S. 1054 , 106 S.Ct. 788 , 88 L.Ed.2d 767 (1986) (quoting Hudson v. Palmer, 468 U.S. 517, 532 , 104 S.Ct. 3194, 3203 , 82 L.Ed.2d 393 (1984)) (emphasis added).

The court attempts to avoid Spruytte by pointing out that the law at issue in Logan v. Zimmerman Brush Co., 455 U.S. 422 , 102 S.Ct. 1148 , 71 L.Ed.2d 265 (1982), a case upon which the Spruytte court relied, did not provide for a post-deprivation judicial remedy. This observation, while interesting, is completely irrelevant to the issue presented by this appeal. The fact remains that the Spruytte court squarely held that “the adequacy of state post-deprivation procedures is irrelevant” when plaintiff has alleged a violation of his rights pursuant to established state procedure. 753 F.2d at 510 .

Because plaintiff did allege that defendants’ actions were part of a broader scheme to ensure that only Democrats received state contracts, and because I agree *1107 with the district court’s holding that Ohio law grants plaintiff a property interest in the fair and non-arbitrary evaluation of his bid, see Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d 356 , 423 N.E.2d 1095 (1981); State ex rel. United District Heating, Inc. v. State Office Bldg. Commission, 124 Ohio St. 413 , 179 N.E. 138 (1931), aff'd on reh., 125 Ohio St. 301 , 181 N.E. 129 (1932), I would affirm the district court’s denial of defendants’ motion to dismiss plaintiff’s procedural due process claim.

III.

Finally, I must dissent from the court’s refusal to consider the appeal of the district court’s imposition of sanctions. My brother declines to reach the issue because it is not “related to the issues of qualified immunity made appealable by Mitchell v. Forsythe, 472 U.S. 511, 530 , 105 S.Ct. 2806, 2817 , 86 L.Ed.2d 411 (1985).” I disagree with this holding, and would instead adopt the position taken by the Ninth Circuit:

An order imposing sanctions solely upon counsel, a non-party to the underlying action, is immediately appealable as a final order. Optyl Eyewear Fashion International Corp. v. Style Companies, Ltd., 760 F.2d 1045 , 1047 n. 1 (9th Cir.1985); Kordich v. Marine Clerks Association, 715 F.2d 1392, 1393 (9th Cir.1983).

Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548, 556 (9th Cir.1986).

Under this rule, it does not matter whether the issues presented by the sanctions order relate to those of qualified immunity because the sanctions order is itself a final, appealable order under 28 U.S.C. § 1295 .

IV.

For the reasons set forth above, I concur with parts I, II-B, and III of the court’s opinion, and dissent from parts II-A, II-C, and IV.