# John A. Mitchell v. Bruce King, Governor of the State of New Mexico > Court of Appeals for the Tenth Circuit · June 22, 1976 · 537 F.2d 385 URL: https://www.frixlaw.com/law-library/cases/9462830 ## Case - **Full name:** John A. MITCHELL, Plaintiff-Appellant, v. Bruce KING, Governor of the State of New Mexico, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Tenth Circuit - **Decided:** June 22, 1976 - **Citations:** 537 F.2d 385; 1976 U.S. App. LEXIS 8422 - **Precedential status:** Published - **Opinion:** Concurrence by Doyle - **Judges:** Breitenstein, Barrett, Doyle - **Cited by:** 181 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9462830 ## How later opinions describe it (automated extraction) - applying New Mexico law ## Opinion text WILLIAM E. DOYLE, Circuit Judge (concurring). I specially concur in the opinion of Judge Barrett. The ingredient of the state of mind of the violator of Section 1983 is considered in the opinion. This is purely gratuitous. Intent is in no way an element which is present here. The determinative holding is that the alleged right is non-existent. Is this not sufficient? Insofar as the opinion rules that the claim of Mitchell rests on a possible property right (which proves to be non-existent) having its origin under state law, and as such is dependent on the due process clause of the Fourteenth Amendment, I agree. I also agree that the state’s highest court’s construction of its laws binds us on the adequate state ground doctrine at least to the extent that it does not violate superi- or Federal doctrine. I object, though, to sweeping with a broad broom in this area so as to give the impression that state law governs the shape and form and content of rights granted by an Act of Congress and, particularly, a venerable one like Section 1983. I must disagree with the construction given by the opinion to Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976). The opinion emphasizes that defamation is not to be given constitutional status. This is true if it is defamation which stands alone, is unaccompanied by a companion right. The language of the opinion is again too sweeping. It is incorrect to underline the sentence that the right protected in a Section 1983 action must have its genesis in state law. The opinion overlooks the explanatory footnote number 5 found in 96 S.Ct. at 1165 , which reads as follows: There are other interests, of course, protected not by virtue of their recognition by the law of a particular State, but because they are guaranteed in one of the provisions of the Bill of Rights which has been “incorporated” into the Fourteenth Amendment. Section 1983 makes a deprivation of such rights actionable independently of state law. See Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961). Our discussion in Part III is limited to consideration of the procedural guarantees of the Due Process Clause and is not intended to describe those substantive limitations upon state action which may be encompassed within the concept of “liberty” expressed in the Fourteenth Amendment. Cf. Part IV, infra. Thus, invasions proscribed in the Bill of Rights are protected. In summary, I voice my reservations to the apparent tendency of the opinion to expand and exalt the state’s role in defining federally protected rights. I repeat that I do not question the conclusion that the plaintiff-appellant here lacks any semblance of a right. Judge BARRETT expresses his agreement with the observations contained herein interpretive of Paul v. Davis, supra. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9462830. Public record. Not legal advice.