# Easter House, an Illinois Not-For-Profit Corporation v. Thomas Felder, Florence McGuire and Joan Satoloe

> Court of Appeals for the Seventh Circuit · August 14, 1990 · 910 F.2d 1387

URL: https://www.frixlaw.com/law-library/cases/9480683

## 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 14, 1990
- **Citations:** 910 F.2d 1387; 1990 U.S. App. LEXIS 14075; 1990 WL 116200
- **Precedential status:** Published
- **Opinion:** Concurrence by Easterbrook
- **Judges:** Bauer, Cummings, Wood, Cudahy, Posner, Coffey, Flaum, Easterbrook, Ripple, Manion, Kanne
- **Cited by:** 189 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/9480683

## How later opinions describe it (automated extraction)

- explaining that "the extent to which the state official's discretion is 'uncircumscribed' . . . appears to have been a decisive factor permitting the majority in Zinermon to rule that Parratt would not" apply, and holding that "exercis[ing] a certain amount of discretion and a…
- explaining that “the extent to which the state official’s discretion is ‘uncircumscribed’ ... appears to have been a decisive factor permitting the majority in Zinermon to rule that Parrott would not” apply, and holding that “exercising] a certain amount of discretion and auth…
- finding that statutory and regulatory limitations upon the Illinois Department of Children and Family Services’ authority to deny license renewals to child welfare agencies created a legitimate claim of entitlement and thus, a property interest
- finding that the alleged deprivation “was not one that the state could have predicted or, more importantly, prevented through the implementation of additional predeprivation procedural safe- guards.”
- noting that § 1983 remedies deprivations resulting from a state’s “conscious decision to ignore the protections guaranteed by the Constitution” and does not remedy deprivations caused by employees “acting in direct contravention of the state’s established policies and procedur…

## Opinion text

EASTERBROOK, Circuit Judge,
concurring.
Zinermon v. Burch, — U.S. -, 110 S.Ct. 975 , 108 L.Ed.2d 100 (1990), is inconsistent with the foundations of Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984). Zinermon said that if errors in the implementation of a state’s scheme for civil commitment are foreseeable, then process after the fact is inadequate, and it “distinguished” Parratt and Hudson on the ground that the wrongs committed in those cases were not foreseeable. This is no distinction at all. It is always foreseeable that there will be some errors in the implementation of any administrative system, and it is never foreseeable which occasions will give rise to these errors. It was foreseeable that some prison guards would lose the prisoners’ property (Parratt), just as it was foreseeable that some persons would be committed without proper authorization (Zinermon); in neither case could the state or a court know in advance just when the errors would occur. If foreseeability of the category of blunders requires process in advance, then Parratt and Hudson were wrongly decided; if the inability to foresee the particular blunder makes subsequent remedies all the process “due”, then Zinermon was wrongly decided. The cases cannot coexist, except perhaps by drawing a distinction between liberty and property, or between important and modest deprivations, neither of which the majority in Zinermon adopted. If Zinermon had overruled Parratt and Hudson , a step its analysis logically entailed, then I would agree with Judge Cudahy that the majority’s analysis is unsound. But the Court did *1409 not take this step. Instead it said, 110 S.Ct. at 985 , that Zinermon could live side by side with Parratt and Hudson .
Inconsistent lines of precedent are common in American law. Zinermon illustrates one reason why. Four Justices (Rehnquist, O’Connor, Scalia, and Kennedy) believe that, when the law on the books complies with constitutional rules, redress in state court after a state’s employees botch up usually supplies due process of law. My opinion concurring in this court’s first in banc decision, 879 F.2d 1458, 1478-81 (7th Cir.1989), was to the same effect. See also Thornton v. Barnes, 890 F.2d 1380, 1389-90 (7th Cir.1989). Three Justices (Brennan, Marshall, and Blackmun) believe that prior hearings are almost always necessary, and they object to treating deprivations followed by judicial process as constitutionally adequate. Two Justices (White and Stevens) are more ambivalent, and their differing emphases lead the Court as an institution to take a meandering line that none of the remaining seven finds satisfactory. Hudson , like Zinermon , was decided 5-4 (with Justice White in the majority and Justice Stevens in dissent); Parratt produced a multitude of opinions; other cases citing Parratt have placed different slants on its holding, depending on which Justice describes it; Justice Stevens has not fully subscribed to any of the competing views his colleagues hold, but has attempted to maintain the line of demarcation he drew in Bonner v. Coughlin, 517 F.2d 1311, 1318-20 (7th Cir.1975), modified in banc, 545 F.2d 565 (7th Cir.1976), a line that depends on the differences between liberty and property (and between compelling and trifling deprivations). Zinermon could not overrule Par-ratt because a majority of the Justices still support it — but their support does not embrace the principles that its author (Justice Rehnquist) believes it stands for.
Such hair-splitting leaves judges of the inferior federal courts in a difficult position, because any effort to reconcile and apply the cases will be met with a convincing demonstration (which Judge Cudahy has supplied) that there is a fly in the ointment. So it is not surprising both that the Fifth Circuit has announced that Ziner-mon compels us to decide this case for the plaintiff, see Caine v. Hardy, 905 F.2d 858, 862 (5th Cir.1990), rehearing granted, 905 F.2d at 867 , and that Judge Jones could pierce the majority’s reasoning with at least as much force as Judge Cudahy has mustered against our majority. Differences that would not necessarily persuade all of the Justices in the majority of Ziner-mon may well persuade one or two, and so a line of precedent already resembling the path of a drunken sailor may take a new turn. I believe that despite the force of Judge Cudahy’s arguments, Judge Kanne offers the best estimate of the course a majority of the Court will take, and I therefore join his opinion. See also Caine, 905 F.2d at 863-867 (Jones, J., dissenting).
Perhaps, however, it is unnecessary to rely on Parratt at all. That case, like the others that follow in its wake, starts from the assumption that the Constitution requires pre-deprivation process. If prior hearings are the constitutional norm, it is easy to see why the Court should be stingy with the exceptions. Prior oral hearings are not always necessary, however. Whether the Constitution requires process in advance of a particular kind of deprivation depends in part on the adequacy of post-deprivation process. So in both Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 195-96 , 105 S.Ct. 3108, 3121-22 , 87 L.Ed.2d 126 (1985), and Ingraham v. Wright, 430 U.S. 651, 674-82 , 97 S.Ct. 1401, 1414-18 , 51 L.Ed.2d 711 (1977), the Court held that a state may act quickly (regulating property in a way that could amount to a “taking” in Williamson, paddling a pupil in Ingraham) and satisfy its constitutional obligation by opening its courts to those injured by errors.. See also, e.g., Mitchell v. W.T. Grant Co., 416 U.S. 600, 619 , 94 S.Ct. 1895, 1906 , 40 L.Ed.2d 406 (1974); Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18 (1976). Action now, litigation later, was the norm in both Williamson and Ingraham , which the Court held satisfied the state’s obligation to extend due process of law.
*1410 Actions against regulated businesses commonly precede full hearings, and cases such as FDIC v. Mallen, 486 U.S. 230 , 108 S.Ct. 1780 , 100 L.Ed.2d 265 (1988), hold that there is no' unyielding rule that hearings come first. Since Zinermon we have twice sustained Illinois’ summary procedure for qualifying the licenses of nursing homes. Somerset House, Inc. v. Turnock, 900 F.2d 1012 (7th Cir.1990); Altenheim German Home v. Turnock, 902 F.2d 582 (7th Cir.1990). Strong interest in protecting children, who cannot protect themselves, is more than enough to justify abrupt handling of adoption agencies, reserving to later hearings the question whether the state acted precipitously.
Regulatory delay is endemic: licenses to operate TV stations sometimes expire years before the FCC gets around to holding hearings on renewal. Licensees keep broadcasting in the meantime, just as Easter House was entitled to keep placing children for adoption once it hired a qualified social worker. Illinois’ delay was modest by administrative standards. The old license expired December 1, 1974; the new one came through on February 19, 1975. Although in the interim a state employee told a state judge that Easter House’s authority had lapsed, it is undisputed that this was mistaken as a matter of state law. The proposition that a mistaken statement of state law by a single state official violates the due process clause of the fourteenth amendment would make hash out of the norm that a government need not pay just because its employees utter mistaken statements of law. See OPM v. Richmond, — U.S. -, 110 S.Ct. 2465 , 110 L.Ed.2d 387 (1990).
Zinermon dealt with liberty, and the Court required states to protect the important interests of those who could not protect themselves. Easter House seeks to vindicate the kind of interests that can be measured in money and redressed long after the event; the state’s interest was in protecting the young at the potential expense of the adoption agency. If the state erred, its courts supply all of the process that is due.
CUDAHY, Circuit Judge,
with whom CUMMINGS and POSNER, Circuit Judges, join, dissenting:
The Supreme Court has remanded this case to us for reconsideration of Easter House’s procedural due process claim in light of Zinermon v. Burch, — U.S.-, 110 S.Ct. 975 , 108 L.Ed.2d 100 (1990). The majority unfortunately misses the point of Zinermon , which must surely compel a result opposite to the majority’s conclusion here. Zinermon , it seems to me, fully supports the analysis contained in my opinion for the original panel in this case, 852 F.2d 901 (7th Cir.1988), and my dissent to the en banc majority’s prior opinion, 879 F.2d 1458, 1481-84 (7th Cir.1989). Based on Zinermon , I have little choice but to renew my dissent.
Before Zinermon , there was a vigorous debate about the reach of the rule announced in Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984). In Parratt and Hudson , the Court held that the deprivation of a property interest caused by the “random and unauthorized” act of a state employee does not violate the Constitution’s procedural due process guarantee where the state has provided adequate postdeprivation remedies. As the Supreme Court observed in Zinermon , some circuits had applied the Parratt/Hudson rule “even to deprivations effected by the very state officials charged with providing pre-deprivation process.” 110 S.Ct. at 978 n. 2 (collecting cases). It has, of course, been clear since the Court’s decision in Logan v. Zimmerman Brush Co., 455 U.S. 422 , 102 S.Ct. 1148 , 71 L.Ed.2d 265 (1982), that Par-ratt does not extend to cases in which an “established state procedure” destroys someone’s property right without according that person proper predeprivation process. In a case involving a county official’s abuse of his office, a panel of this court recognized that Parratt could be construed both broadly and narrowly and opted for a narrow construction of the rule under the facts presented. Tavarez v. O’Malley, 826 F.2d 671 (7th Cir.1987) (Posner, J.). But *1411 before Zinermon , the vast territory between the Parratt situation on the one hand and the Logan scenario on the other remained largely uncharted. The Court granted certiorari in Zinermon precisely in order to resolve the circuit conflict over Parratt’s proper scope.
The Supreme Court’s decision in Ziner-mon is certainly consistent with a narrower interpretation of Parratt , like that employed in Tavarez. Zinermon holds that a predeprivation hearing is required, where possible, when the occurrence of a constitutional deprivation is not unforeseeable. This is a far fetch from the view that only Logan defines the paradigmatic circumstances in which predeprivation process is required. See Greco v. Guss, 775 F.2d 161, 171 (7th Cir.1985) (Wood, Jr., J.) (“The controlling inquiry [under Parratt and Logan ] is not whether the deprivation resulted from an established state procedure but rather whether predeprivation process was practical.”). Zinermon explains, indeed, that predeprivation process is the rule, not the exception. Yet the majority has glossed over Zinermon’s import in an effort to preserve the broad application of Parratt it employed in its first en banc opinion.
Before Zinermon , the majority’s due process analysis was plausible. But in view of Zinermon , it is no longer conceivable that the Parratt rule may be applied so broadly as the majority applies it here. The majority opinion goes to great lengths to distinguish Zinermon factually from the present case. In doing so, the majority demonstrates its continued adherence to the view, rendered wholly untenable by Zinermon , that Parratt may be applied in any case except one involving an “established state procedure,” as in Logan . Indeed, the majority treads dangerously close to categorizing Zinermon as a Logan-type case. See Majority op. at 1401 (opining that Florida legislature’s broad delegation of uncircumscribed authority to hospital staff was “statutory oversight” which rendered liberty deprivation predictable). The majority evidently considers Zinermon merely another narrowly factual exception to the broad application of Parratt. See id. at 1401 (“[WJhen alternative relief exists and the facts of the case dictate that Zinermon does not render Parratt and Hudson inapplicable, a plaintiff’s due process rights are not violated and no basis for a section 1983 action exists.”). The majority’s niggardly interpretation of Zinermon could not be more wrong.
The majority’s failure to confront Ziner-mon head-on has forced it into a series of contradictions. These contradictions in turn have led the majority to enlist a battalion of straw men in order to help evade the real issues here. The majority’s predicament is most evident in its continued difficulty defining who or what is the “state” and what conduct by which state employees may give rise to a section 1983 action against the state. In the majority’s view, only “policymakers” may be equated with the “state” because only a “policy” that results from “formal policymaking process” amounts to an “established state procedure.” See Majority op. at 1402-1403. The majority’s error in this regard obviously derives from its intransigent adherence to the view that Logan describes the only exception to the applicability of the Par-ratt rule.
In casting the problem of what constitutes “state” action as a question whether or not a particular state employee’s status in the official hierarchy will make that employee’s conduct per se attributable to the state, the majority is simply tilting at windmills. Whether a person is the “state” will inevitably depend upon the scope of that person’s official authority and the facts of the particular case. It should be clear in light of Zinermon , however, that, for purposes of determining whether the “state” has violated an individual’s constitutional right to due process, the “state” generally includes any person to whom is delegated the responsibility of giving predeprivation process. See 110 S.Ct. at 990 (“The State delegated to [the hospital staff] the power and authority to effect the very deprivation complained of here ... and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement.”). *1412 This definition unquestionably includes Felder, the Illinois official who was charged with providing notice and a hearing before declining to renew Easter House’s license.
It makes no difference that Felder’s authority was “circumscribed” by state laws and agency regulations. The decision to grant process was within his scope of authority, and he should not be absolved of liability for abusing his discretion simply because the state laws and regulations, had he followed them, would have satisfied the Constitution's due process requirement. In Zinermon , the Court relied heavily on its holding in Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961) (overruled in part not relevant by Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978)), that section 1983 applies to all violations of constitutional rights — not only those that are authorized by state law, but also those that result from abuses of state authority and are forbidden by state law. 110 S.Ct. at 982; see also Tavarez, 826 F.2d at 677 (State officials could not “escape liability under section 1983 simply by exceeding the scope of their authority.”). I am confounded, therefore, by the majority’s persistence in characterizing Felder's abuse of his official power as “random and unauthorized” conduct for which the state may not be held liable under the Parratt rule. *
While it is jousting with imaginary adversaries, the majority ignores the gist of Zinermon . The constitutional principles discussed in Zinermon apply to all situations in which state officials charged with implementing a statute fail to provide constitutionally required predeprivation process when to do so would not be impossible or impracticable. The key is whether it is reasonably possible to hold a hearing. The balancing test announced in Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), is not, as the majority supposes, concerned with whether the property deprivation occurred pursuant to a “formal" or “informal” state policy, but rather whether predeprivation process was feasible. Indeed, the Supreme Court has explicitly rejected the proposition that Par-ratt may apply when predeprivation process is feasible, as long as the state provides adequate post deprivation process. Zinermon, 110 S.Ct. at 987 (“In situations where the State feasibly can provide a pre-deprivation hearing before taking the property, it generally must do so, regardless of the adequacy of a post-deprivation tort remedy to compensate for the taking.”); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985). The Court emphasized in Zinermon that “Parratt and Hudson represent a special case of the Mathews v. Eldridge analysis, in which postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the State could be expected to provide.” Zinermon, 110 S.Ct. at 985 (emphasis added).
Thus, Zinermon simply reaffirms the functional test supplied by Mathews v. Eldridge. If the deprivation was predictable and predeprivation process was possible, the state should be held liable for failure to provide predeprivation process. It is eminently predictable (and not, unfortunately, unusual) that an official such as Felder who acts for the state in determining whether or not a license will be renewed *1413 and whether or not notice and a hearing will precede the renewal decision may abuse his authority and simply deny the renewal without furnishing the licensee due process. Under Mathews and Zinermon , a designated process-giver who refuses to give process violates the Constitution as much as a legislature that establishes inadequate procedural protections for property or liberty deprivations.
I remain unpersuaded by the majority’s cursory review of possible postdeprivation legal remedies available to Easter House. Under Zinermon , the mere existence of a postdeprivation tort claim (or a battery of potential tort claims) cannot excuse the state’s failure to provide predeprivation process in most cases. See also Tavarez, 826 F.2d at 675 (“If due process is satisfied by the ordinary state judicial remedies for torts, then not only would virtually no interference with property be actionable under section 1983, but even such classic constitutional-tort cases as that of the policeman who kills a suspect in order to bypass the cumbersome procedures of the criminal justice system would not be actionable, provided the killing was a tort under state law.”). Further, the majority persists in its superficial treatment of the thorny question of state immunity.
I had thought that the Supreme Court’s decision in Zinermon would have resolved the dispute over the validity of Easter House’s procedural due process claim. Instead, the majority has danced around Zin-ermon, disregarding the broad precedential impact of that case and merrily tripping down its own tortuous path toward what seems to me an obviously wrong conclusion. It is indeed regrettable that the majority has once again chosen a course that will unquestionably weaken the protections of section 1983 and leave citizens vulnerable to unconstitutional abuses of power by state officials. I respectfully dissent.
It seems to me that the majority stumbles over the definition of another key word: "authorized." As the Supreme Court explains in Zinermon , the state employees' acts in Parratt and Hudson were "unauthorized" in the sense that those employees had no state-delegated power or authority to effect the deprivations that occurred in those cases, and they had no corresponding duty to provide the victims with procedural safeguards. In contrast, the authority delegated by the state to the hospital officials in Zinermon — like the authority vested by Illinois in Felder — was the power to act as a representa-five of the state in depriving individuals of their liberty or property interests. This authority carried with it the duty to provide predeprivation due process. Thus, as in Zinermon , "[t]he deprivation here is ‘unauthorized’ only in the sense that it was not an act sanctioned by state law, but, instead, was a 'depriv[ation] of constitutional rights ... by an official's abuse of his discretion.”' Zinermon, 110 S.Ct. at 990 (quoting Monroe v. Pape, 365 U.S. at 172 , 81 S.Ct. at 476 ). The Court explicitly determined that such a deprivation is not "unauthorized” in the Parratt sense.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480683. Public record. Not legal advice.