Dan Bowers v. The City of Flint

MOORE, Circuit Judge,

concurring.

I concur, but write separately to explain more fully why the district court did not err in granting the City of Flint (“Flint”) summary judgment on plaintiffs’ (“the residents”) claim that Flint violated their substantive due process rights by issuing water bills for over-estimated quantities and by failing to comply with the requirements of Flint Ordinance § 46-52.2.

The Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. To allege a violation of their substantive due process rights, the residents must assert either the “denial of a right, privilege, or immunity secured by the Constitution or by federal statute” or an official act which “ ‘shocks the conscience’ of the court.” Mertik v. Blalock, 983 F.2d 1353, 1367-68 (6th Cir.1993). “Where government action does not deprive a plaintiff of a particular constitutional guarantee or shock the conscience, that action survives the scythe of substantive due process so long as it is rationally related to a legitimate state interest.” Valot v. Southeast Local Sch. Dist. Bd. Of Educ., 107 F.3d 1220, 1228 (6th Cir.), cert. denied, 522 U.S. 861 , 118 S.Ct. 164 , 139 L.Ed.2d 108 (1997). Therefore, this court should undertake a three-step analysis of the residents’ substantive due process claim. First, we should consider whether the asserted interest constitutes a fundamental constitutional right. 1 If the asserted interest is not a fundamental right, we then must evaluate whether Flint’s conduct depriving the residents of that interest shocks the conscience. Finally, if Flint’s conduct does not shock the conscience, then this court must consider whether that conduct is rationally related to a legitimate state interest.

I. A Fundamental Constitutional Right

To allege a due process violation of a constitutionally-protected property interest, the residents first must show that governmental conduct deprived them of a right previously held under state law. See Whaley v. County of Tuscola, 58 F.3d *765 1111, 1113-14 (6th Cir.1995) (“The existence of a property interest for due process purposes depends in large part on state law.”), cert. denied, 516 U.S. 975 , 116 S.Ct. 476 , 133 L.Ed.2d 404 (1995). As the Supreme Court has explained, “[p]roperty interests .... are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — ’rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents v. Roth, 408 U.S. 564, 577 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972). But although property interests are created by state law, “whether a substantive interest created by the state rises to the level of a constitutionally protected property interest is a question of federal constitutional law.” Whaley, 58 F.3d at 1114 . Federal law dictates that “only those interests to which one has a legitimate claim of entitlement,” including but not limited to “statutory entitlements,” are protected by the due process clause. Hamilton v. Myers, 281 F.3d 520, 529 (6th Cir.2002) (internal quotations omitted).

The majority relies on Charles v. Baesler, 910 F.2d 1349 (6th Cir.1990), for the proposition that “[m]ost, if not all, state-created contract rights, while assuredly protected by procedural due process, are not protected by substantive due process” because “[t]he substantive Due Process Clause is not concerned with the garden variety issues of common law contract.” Id. at 1353 . Charles argued that, pursuant to a local ordinance, he had a categorical substantive due process right to a promotion. His contractual right to promotion did not qualify as a fundamental interest, however, because “[rjoutine state-created contractual rights are not ‘deeply rooted in this Nation’s history and tradition,’ and, although important, are not so vital that ‘neither liberty nor justice would exist if [they] were sacrificed.’ ” Id. (quoting Bowers v. Hardwick, 478 U.S. 186, 191, 192 , 106 S.Ct. 2841 , 92 L.Ed.2d 140 (1986)). Moreover, the deprivation of Charles’s contractual right could be readily compensated “in a breach of contract action in the Kentucky courts.” Charles, 910 F.2d at 1355 (internal quotation omitted).

The majority suggests that any contractual right the residents may have to receive a discount on their water bills is no different than Charles’s right to a promotion because they are both interests that can be “redressed adequately in a state breach of contract action.” Id. (internal quotations omitted). It is true that, like the plaintiffs claim in Charles , the residents’ claim could be redressed in a state contract action, but that factor is not determinative of whether an asserted interest is protected under the Due Process Clause. The scope of substantive due process protections with respect to property rights turns not on the availability of state contract remedies, but on whether “liberty and justice are threatened, in the constitutional sense, by the failure of the government and its officials to abide by their contract.” Id. at 1353 . In fact, as the Charles court noted, “[t]he Supreme Court has assumed, without deciding, that substantive due process might protect some state-created, contractually-based property interests.” 2 Id. at 1353-54 . However, in *766 light of the fact that “[governments breach contracts virtually every day without dire consequences ensuing to the human dignity or basic autonomy of the promisees .... in the usual breach of contract ease such as this, failure to meet contractual obligations cannot be equated with the sort of injustice inherent in egregious abuse of government power.” Id. at 1353 (internal quotation omitted). This court has never concluded “that all state-created contract rights lack substantive due process protection.” Id. at 1355 (distinguishing between contract rights creating fundamental interests and those creating lesser interests).

Because the existence of state law remedies is only one factor in determining whether an interest is a fundamental right, it is necessary to evaluate whether the residents’ claim that their right to a discount pursuant to § 46-52.2 “is deeply rooted in our national history and tradition is both legally and historically indefensible.” Id. at 1353. As the Charles court explained, “[t]he touchstone of substantive due process protection undoubtedly remains our history and social traditions.” Id. at 1355 . Where an “alleged right certainly cannot be considered so rooted in the traditions and conscience of our people as to be ranked as fundamental,” substantive due process does not apply. Reno v. Flores, 507 U.S. 292, 303 , 113 S.Ct. 1439 , 123 L.Ed.2d 1 (1993) (internal quotation omitted).

Although this court has yet to consider the whether the right asserted is fundamental, I would conclude that “an interest in a fair water bill is not such a fundamental right that it triggers the due process clause’s substantive protections,” particularly where the state has provided a procedural remedy. Chun v. New York City Dep’t of Envtl. Prot., 989 F.Supp. 494, 497 (S.D.N.Y.1998). The residents offer no evidence that their interests in accurate billing and receiving the discount awarded under the ordinance are deeply “rooted in the traditions and conscience of our people.” Reno, 507 U.S. at 303 , 113 S.Ct. 1439 . Although the Constitution commands obedience to statutes, “a federal court will not require a state to follow its own law.” Carson v. Block, 790 F.2d 562, 565 (7th Cir.), cert. denied, 479 U.S. 1017 , 107 S.Ct. 669 , 93 L.Ed.2d 721 (1986). As the Seventh Circuit has explained,

A rule equating a violation of a statute with a violation of the Constitution might make states less willing to help their residents, because they could not limit the resources devoted to that task. The body with the power to create a rule also has the right incentives to police it. Cities and states are not hostile to their own laws; they do not need federal courts to prod them to enforce rules voluntarily adopted, although federal courts may be indispensable in ensuring that states adhere to constitutional norms.

Archie v. City of Racine, 847 F.2d 1211, 1218 (7th Cir.1988) (en banc), cert. denied, 489 U.S. 1065 , 109 S.Ct. 1338 , 103 L.Ed.2d 809 (1989).

Therefore, I agree with the majority that the residents do not articulate the deprivation of a right that is fundamental for substantive due process purposes.

II. Conduct that Shocks the Conscience

Because the residents’ complaint does not allege the violation of a fundamental right, “the claim must be based on behavior that shocks the conscience.” Braley v. *767 City of Pontiac, 906 F.2d 220, 226 (6th Cir.1990). “[T]he due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm,” County of Sacramento v. Lewis, 523 U.S. 833, 848 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998), but it does “protect citizens from the arbitrary exercise of governmental power,” Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir.2001) (internal citations omitted). To allege behavior that rises to the level of a substantive due process violation, the residents “must demonstrate that the state acted with the requisite culpability” by engaging in conduct “so ‘egregious’ that it can be said to be ‘arbitrary in the constitutional sense.’” Ewolski v. City of Brunswick, 287 F.3d 492, 510 (6th Cir.2002) (citations omitted). Whether particular government conduct “shocks the conscience” depends on the factual circumstances of the conduct. Id.

The Supreme Court has explained that “criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.” Lewis, 523 U.S. at 846 , 118 S.Ct. 1708 . In this case, the residents’ complaint addresses not the ordinance enacted to provide a discount on water bills, but Flint’s “abusive executive action” in failing to implement the discount. Id. Thus, the residents must demonstrate that “the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 847 n. 8, 118 S.Ct. 1708 . Determining whether the residents have made such a showing “necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them.” Id.

In this case, the ordinance implementing the five percent discount clearly explained that “[wjater and sewer bills shall, as soon as practicable set forth the discounted amount and the last day to take advantage of the discount on the face of the statement.” Flint Ord. § 46-52.2(d). The ordinance provided that the discount would apply where residents paid the bill in full “prior to the due date as set forth on said bill.” Id. § 46-52.2(b). In light of the fact that “a federal court will not require a state to follow its own law,” Carson, 790 F.2d at 565 , and the fact that the ordinance arguably expressly contemplates delayed implementation, I cannot conclude that Flint’s failure to provide the discount is so egregious or outrageous that it shocks the conscience. Moreover, I have been unable to find any case where a city’s failure to implement an enacted ordinance amounted to government conduct that shocked the conscience. Likewise, estimating water usage for billing purposes has long been recognized as a legitimate practice. See, e.g., Note, An Aspect of Public Utility Rate Valuation: The Working Capital Allowance, 102 U. Pa. L.Rev. 491, 507 (1954) (explaining that many utilities offset the cost of services that they bear until corresponding revenues are obtained by “rendering estimated bills in advance, with a periodic reading of meters and adjusting of accounts”).

Therefore, I would conclude that the residents have failed to show that Flint’s conduct was “arbitrary in the constitutional sense.” Lewis, 523 U.S. at 846 , 118 S.Ct. 1708 (quotation omitted).

III. Rationally Related to a Legitimate State Interest

Because Flint’s failure to implement the discount and its practice of estimating water usage for billing purposes do not deprive the residents of a fundamental right or shock the conscience, this conduct will *768 “survive[ ] the scythe of substantive due process so long as it is rationally related to a legitimate state interest.” Valot, 107 F.3d at 1228 . Flint asserts that it has a legitimate interest in not implementing the discount contemplated by the ordinance until it is able to do so. According to Flint,

When the City legislature was entertaining this ordinance as a proposal, the City’s current billing system was outdated and at the time incapable of furthering the intent of the ordinance. In addition to the City’s deficiencies with its billing system, it was known that [the City’s bank] ... also could not handle the demands of the new ordinance.... To remedy the internal deficiencies, the city legislature added discretionary language to the ordinance to allow for the time needed for the software changeover.

Flint Br. at 5. Flint’s decision to delay the implementation of its discount is rationally related to its legitimate interest in ensuring that it is technologically able to provide the discount. Moreover, Flint’s practice of estimating water usage for billing purposes is rationally related to its legitimate interest in lowering the costs of monitoring water usage. Therefore, the residents have failed to show that Flint’s conduct is not rationally related to the city’s legitimate interests.

Because Flint’s conduct does not implicate a fundamental right, does not shock the conscience, and is rationally related to a legitimate state interest, neither Flint’s practice of estimated billing nor its failure to comply with § 46-52.2 violates the residents’ Fourteenth Amendment substantive due process rights.

. "Where state action infringes upon a fundamental right, such action will be upheld under the substantive due process component of the Fourteenth Amendment only where the governmental action furthers a compelling state interest, and is narrowly drawn to further that state interest.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1065 (6th Cir.1998).

. In light of the Supreme Court's recognition that substantive due process may protect some state-created contract rights, Regents of the University of Michigan v. Ewing, 474 U.S. 214, 222-23 , 106 S.Ct. 507 , 88 L.Ed.2d 523 (1985), "the Circuits have split on the question whether substantive due process protects run-of-the-mill state-created contractual property interests. The Eighth Circuit has continued to recognize substantive due process protection from ‘arbitrary and capricious' deprivation of some contract rights.” *766 Charles v. Baesler, 910 F.2d 1349, 1354 (6th Cir.1990). The Charles court followed the majority approach, concluding that, under Sixth Circuit law, "Charles' contractual promotion right does not enjoy substantive due process protection.” Id.