# Easter House, an Illinois, Not-For-Profit Corporation v. Thomas Felder, Florence McGuire and Joan Satoloe > Court of Appeals for the Seventh Circuit · August 4, 1989 · 879 F.2d 1458 URL: https://www.frixlaw.com/law-library/cases/9479287 ## Case - **Full name:** EASTER HOUSE, an Illinois, Not-For-Profit Corporation, Plaintiff-Appellee, v. Thomas FELDER, Florence McGuire and Joan Satoloe, Defendants-Appellants - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** August 4, 1989 - **Citations:** 879 F.2d 1458 - **Precedential status:** Published - **Opinion:** Concurrence by Easterbrook - **Judges:** Bauer, Cummings, Wood, Cudahy, Posner, Coffey, Flaum, Easterbrook, Ripple, Manion, Kanne - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Vacated on other grounds by Easter House v. Felder, 494 U.S. 1014 (1990). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9479287 ## How later opinions describe it (automated extraction) - describing Par- ratt’s purpose as “discouraging the use of section 1983 as a supertort remedy to supplant existing state remedial proce- dures” ## Opinion text EASTERBROOK, Circuit Judge, concurring. An adoption agency without the staff required by state law can’t operate. Easter House concedes that for an extended period it lacked essential staff. It would be straightforward to hold that in such circumstances the Constitution does not require a hearing before the state may suspend the agency’s license and tell other public officials (such as the Chief Judge of the Circuit Court) what it has done. See FDIC v. Mallen, 486 U.S. 230 , 108 S.Ct. 1780, 1787-88 , 100 L.Ed.2d 265 (1988). The parties have not made such an argument, so I join the majority’s opinion, which assumes that a prior hearing was necessary and ably interprets Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981). We have been told that Parratt allows a subsequent hearing to suffice only when “random and unauthorized” conduct makes it “impossible or impracticable to provide a meaningful hearing before the deprivation”, Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 195 , 105 S.Ct. 3108, 3121 , 87 L.Ed.2d 126 (1985). The court today elaborates on “random and unauthorized”. I wonder, however, whether the principle has a scope as limited as Williamson County suggests. When a state official violates state law, the usual (and constitutionally appropriate) response is a suit in state court. See DeShaney v. Winnebago County Department of Social Services, — U.S. -, 109 S.Ct. 998, 1007 , 103 L.Ed.2d 249 (1989); Archie v. City of Racine, 847 F.2d 1211, 1216-17 (7th Cir.1988) (en banc). At bottom, all this case is about — all most Par-ratt cases are about — is a state official’s violation of state law. Instead of decking the state-law claim in constitutional garb, the victim should proceed to state court. Trying this as a “constitutional” case has delayed it for thirteen years. Litigation is slow and often unsatisfactory; constitutional litigation, with a cloud of ancillary issues from abstention to immunity, is slower and less satisfactory than the norm. Far better to treat state-law errors as just that, and get on with the remedy. “Process is not an end of itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250 , 103 S.Ct. 1741, 1748 , 75 L.Ed.2d 813 (1983). The process that is “due” under the Constitution depends on what is necessary to “protect a substantive interest”. One way to protect the entitlement is with a foolproof system of prior hearings, followed by appellate review, restudy, and re-restudy un *1479 til there is no chance of error. No one supposes, however, that only a zero rate of error is constitutionally adequate, or that we should study every decision eternally. Delay, like process, may be costly. The incidence of the cost is different (delay injures those action would protect, such as persons seeking to place or adopt children), but the cost is no less real. And error is with us always. Even criminal courts, using the most elaborate procedures, allow some chance of convicting the innocent— and to minimize the rate of erroneous conviction they release many guilty persons, a troubling source of error from society’s perspective. An alternate way to protect the entitlement is to have no “process” before the fact (other than the deliberation that precedes most human action, and the desire of persons to do the right thing), allowing prompt decision, and careful study plus damages afterward. Courts could require the wrongdoer to pay damages, achieving both compensation and deterrence. States could fire (or horsewhip) errant officials. Which approach is superior depends on the costs of process, the costs of error (in both directions, for omissions to act can be disastrous), and the ability of subsequent remedies to deter and compensate. Most of our lives are lived out in the shadow of the second approach. People make, keep, or break contracts, then face the music in court. Employers hire and fire, design and release products, sell securities, and so on, knowing that damages remedies lie in wait. This usual system, a form of ex post settling-up, works best when the rate of error is low in the main and can be held within acceptable limits by the threat of damages. If things rarely go wrong (whether because there is a low native risk of error or because the threat of damages is a potent deterrent), it is far better to allow prompt action and conserve the legal system for the claim that something has gone amiss than it is to delay every decision and hold a costly hearing in every case. Donald Wittman, Prior Regulation versus Post Liability: The Choice Between Input and Output Monitoring, 6 J.Legal Studies 193 (1977). Even when mistakes are sufficiently common (and costly when they occur) that a system of prior review is worthwhile, that system will not operate perfectly. A sensible approach to the design of procedures incorporates elements of the different approaches. Because no system is foolproof, we may choose to accept a little less accuracy from the prior review in exchange for a little more care in subsequent review. You can always trade off a somewhat weaker system of before-the-fact controls for better after-the-fact remedies: for example, informal hearings or consultation before decision, but more complete study plus damages later. The message of Par-ratt is that the Due Process Clause does not sit athwart this tradeoff. “[Pjrocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.” Mathews v. Eldridge, 424 U.S. 319, 344 , 96 S.Ct. 893, 907 , 47 L.Ed.2d 18 (1976). If the state designs a system of procedures — including both hearings before the event and processes afterward to correct miscues — that holds the rate of error adequately low in light of the costs of error (taking into account the speed and accuracy with which state courts rectify mistakes), it does not help understanding to call blunders in execution violations of the Constitution, as opposed to slip-ups inevitable in the administration of any human institution. When the net rate of error is low enough that the system satisfies constitutional norms, the exceptions — problems of implementation rather than design — should be seen as violations of state law without independent constitutional significance. Judge Stevens made this point in Bonner v. Coughlin, 517 F.2d 1811 , 1318-20 (7th Cir.1975), modified en banc, 545 F.2d 565 (1976), elaborating on the fact that the Clause is addressed to the “state” as an entity rather than any individual state actor. Although a particular state actor (a person acting “under color of state law”) may violate another’s rights, the “state” comprises not only such predators but also others who will put things right, including *1480 a judicial system. To understand whether the “state” has acted without due process of law, we must examine the state’s procedures as a whole. If the “state” puts things to rights after a state actor has misbehaved, the state has fulfilled its constitutional obligation to its residents. State courts offer “due process” to those complaining of private wrongs; state courts also may supply the process that is “due” when a state actor commits a wrong. Emphasizing that due process means a system of procedures and entitlements does not mean that the state hasn’t “really” acted until the last state actor has performed the last act. Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278 , 33 S.Ct. 312 , 57 L.Ed. 510 (1913), rejected that position. Henry Paul Monaghan, State Law Wrongs, State Law Remedies, and the Fourteenth Amendment, 86 Colum.L.Rev. 979 (1986). See also Ex parte Virginia, 100 U.S. 339, 346-48 , 25 L.Ed. 676 (1879). A deed with current effect may be state action, and unlawful (or unconstitutional) immediately, even though the state plans to reverse the action later. If the government builds a highway across your land, it has “taken” that land even though it plans to remove its concrete in 50 years. But asking when the state has acted distracts attention from the pertinent question: whether the state offers “due process of law” to those aggrieved by the proposed or completed act. Answering that question requires an understanding of many sequential acts even though the first deprivation is unquestionably state action — and is remediable by a federal court if the rest of the state’s plans do not add up to due process. From this perspective, whether the acts in question were “random and unauthorized” is important only to the extent the frequency of error conveys information about the adequacy of the state’s procedural apparatus. Frequent errors, caused by features designed into the state’s system, may show that the system does not deliver due process of law. E.g., Logan v. Zimmerman Brush Co., 455 U.S. 422 , 102 S.Ct. 1148 , 71 L.Ed.2d 265 (1982). By the same token, action that always precedes hearings may comply with the Due Process Clause if the state offers damages as balm, even though the Clause would require a prior hearing if there were no subsequent remedy. Ingraham v. Wright, 430 U.S. 651, 674-82 , 97 S.Ct. 1401, 1414-18 , 51 L.Ed.2d 711 (1977). Ingraham , which held that the Constitution allows teachers to paddle their pupils first so long as the state offers litigation later, is the progenitor of Parratt. Ingraham states the rule; Parratt is one implementation. How much error is too much is of course the critical question. Justice Stevens thought that injuries caused by erroneous corporal punishment are too grave to rest content with subsequent litigation as the sole source of both deterrence and compensation. Ingraham, 430 U.S. at 701-02 , 97 S.Ct. at 1427 (dissenting). Federal courts issue writs of habeas corpus when states have deprived persons of liberty through faulty procedures, even though the states’ systems may function flawlessly in 99.44% of the cases. So we do not always define due process as a system of procedures adequate in the main. All the same, it is difficult to believe that the Constitution treats judicial hearings after the fact — the model of “due” process copied to greater or lesser degrees by agencies — as inadequate in the ordinary case of a public official’s departure from rules prescribed by state law, rules that are constitutionally sufficient if followed. If bureaucrats in Illinois routinely rode roughshod over adoption agencies, yanking licenses and spreading calumnies so often that these practices became “the state’s” policy, and then huddled under a blanket of immunity, we could conclude that the state as an entity does not offer due process of law. This approach has obvious parallels to the question whether the seemingly unauthorized acts of public employees should be attributed to a local government for purposes of Monell v. New York Department of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978). E.g., City of Canton v. Harris, — U.S. -, 109 S.Ct. 1197 , 103 L.Ed.2d 412 (1989); City of St. Louis v. Praprotnik, 485 U.S. *1481 112 , 108 S.Ct. 915 , 99 L.Ed.2d 107 (1988). Our record does not suggest that the treatment Easter House received is the norm or that the threat of litigation in state courts is hollow. Even if the Constitution requires Illinois to offer adoption agencies prior hearings, litigation in state courts is all the process “due” when errors occur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479287. Public record. Not legal advice.