Little v. City of North Miami

• Decision Date: 09 December 1986
• Docket Number: No. 85-6068,85-6068
• Citation: 805 F.2d 962
• Parties: 35 Ed. Law Rep. 1037 Joseph W. LITTLE, Plaintiff-Appellant, v. CITY OF NORTH MIAMI, Marco V. Loffredo, Jr., John Hagerty, Diane Brannen, James Devaney, Simon, Schindler and Hurst, P.A., and Jennifer Hurst Kroner, f/k/a Jennifer Hurst, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 962

805 F.2d 962

35 Ed. Law Rep. 1037

Joseph W. LITTLE, Plaintiff-Appellant, v. CITY OF NORTH MIAMI, Marco V. Loffredo, Jr., John Hagerty Diane Brannen, James Devaney, Simon, Schindler and Hurst, P.A., and Jennifer Hurst Kroner f/k/a Jennifer Hurst Defendants-Appellees.

No. 85-6068.

United States Court of Appeals Eleventh Circuit.

Dec. 9, 1986.

Robert C. Widman, Richard E. Nelson, Nelson Hesse Cyril Smith Widman & Herb, Sarasota, Fla., for plaintiff-appellant.

Joseph W. Little, Gainesville, Fla., pro se.

Guy Gaebe, Gaebe & Murphy, Coral Gables, Fla., for City of Miami, et al.

Claudia B. Greenberg, Marlow, Shofi, Smith, Connell, DeMahy & Valerius, Miami, Fla., for Simon, Schindler & Hurst, P.A.

Mark R. Boyd, Walsh, Theissen and Boyd, Ft. Lauderdale, Fla., Michael J. Murphy, Gaebe & Murphy, Coral Gables, Fla., for Kroner.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and JOHNSON, Circuit Judges, and HOFFMAN ^*, Senior District Judge.

CORRECTED OPINION

PER CURIAM:

This case involves alleged civil rights violations. Appellant brought an action against multiple defendants in the United States District Court for the Southern District of Florida alleging inter alia five violations of 42 U.S.C. Sec. 1983 (1981). Little v. City of North Miami, 624 F.Supp. 768, 770 (S.D.Fla.1985). The District Judge dismissed the civil rights claims for failure to state a claim upon which relief could be granted. Little, 624 F.Supp. at 771-74. Because we conclude that appellant's first amendment and procedural due process claims state causes of action cognizable under Section 1983, we reverse.

I. BACKGROUND

For the purpose of evaluating the sufficiency of a complaint, we must accept the facts pleaded as true and construe them in the light most favorable to appellant. Quality Foods de Centro Americo, S.A. v. Latin American Agribusiness Development Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Appellant is a member of the Florida Bar Association and a professor of law at the University of Florida. Prior to October, 1983, appellant represented the Florida Defenders of the Environment in two Florida state court civil actions. This representation was on a pro bono publico basis with the approval of the University of Florida. The City of North Miami was an intervening party in the second lawsuit and was represented by Jennifer Hurst Kroner, an attorney employed by Simon, Schindler and Hurst, P.A. This state litigation involved the constitutionality of state appropriation for the purchase of land owned by the City of North Miami.

On October 11, 1983, the city Council of North Miami adopted Resolution No. R83-65 which states: "the Council of the City of North Miami hereby censures Professor Joseph W. Little for improper use of public funds to represent private parties in litigation against the State and against the interests of the City of North Miami." This resolution was passed and read aloud at a public meeting without notice to appellant and without verification that the assertions were truthful. Copies of R83-65 were circulated to twenty persons, including the president of the University of Florida, the dean of the University of Florida College of Law, the chairman and members of the Florida Board of Regents, the members of the Florida Legislature representing Dade County, and the Florida State Auditor General.

As a result of the passage and publication of the resolution, governmental investigations were undertaken and appellant claims he "suffered damage to his reputation, his employment relations, and mental and emotional pain and distress." Appellant does not assert that his employment has been terminated or that he has been denied tenure. Nevertheless, appellant brought an action against the city of North Miami, the mayor and council members, the attorney who prepared the resolution and the legal professional association who employed her. The complaint sought damages for five alleged constitutional violations and five pendant state law claims. As indicated, the district court dismissed the federal claims pursuant to Fed.R.Civ.P. 12(b)(6) without prejudice for appellant to seek redress for his state claims in state court. Little, 624 F.Supp. at 774. We have distilled the federal claims down to four issues and shall analyze them seriatim in order to determine whether appellant set forth sufficient facts which would entitle

him to relief. For the reasons that follow, we reverse the ruling of the district court with respect to appellants' first amendment and procedural due process claims.

II. ANALYSIS

42 U.S.C. Sec. 1983 (1981) provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

To state a claim under this Section, "a plaintiff must allege facts showing that the defendant's act or omission, done under color of state law, deprived him of a right privilege, or immunity protected by the Constitution or laws of the United States." Emory v. Peeler, 756 F.2d 1547, 1554 (11th Cir.1985). Section 1983 creates no substantive rights; it does, however, provide remedies for deprivations of constitutionally protected interests. See Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979). Local governing bodies and local officials in their official capacities can be sued under Section 1983 when a party can establish that he or she has suffered a constitutional deprivation as a result of either "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or a "governmental 'custom' even though such a custom has not received formal approval through the body's official decision making channels." Monell v. Department of Social Services, 436 U.S. 658, 690, 91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978).

For the purposes of determining the sufficiency of a claim, the likelihood of recovery is irrelevant. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). As the Supreme Court observed, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686. This Court has acknowledged that "a complaint should not be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) 'unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to relief.' " Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir.1986) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).

A. Bill of Attainder

Appellant claims that R83-65 adopted and disseminated by the Council of the City of North Miami operates as a bill of attainder. A bill of attainder, forbidden by U.S. Const. Art. I Sec. 9, cl. 3 and Sec. 10, cl. 1, has been described as "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-47, 104 S.Ct. 3348, 3352, 82 L.Ed.2d 632 (1984) (quoting Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977)). The resolution in question, censuring appellant for "improper use of public funds," unquestionably resembles a bill of attainder in several respects.

First, R83-65 clearly identifies an individual. Second, the resolution arguably accuses appellant of unprofessional, unethical and criminal conduct. Third, the City Council, by passing the resolution, impliedly found appellant guilty without affording him the protections guaranteed by the formal adversarial process. Despite the similarities between the resolution and a bill of attainder, the district court determined that R83-64 is not a bill of attainder Regarding the punishment requirement, the Supreme Court has recognized three tests for determining whether a law penalizes an individual for bill of attainder purposes: "(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, 'viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes'; and (3) whether the legislative record 'evinces a [legislative] intent to punish.' " Selective Service System, 468 U.S. at 852, 104 S.Ct. at 3355 (quoting Nixon, 433 U.S. 425 at 473, 475-76, 478, 97 S.Ct. 2777, 2805, 2806-07, 2809, 53 L.Ed.2d 867).

                because the resolution "is not a legislative pronouncement with the force of law" and because it "does not prescribe a punishment, penalty or forfeiture."   Little, 624 F.Supp. at 771
                

Although a public censure is not as harsh a sanction as the historical "pains and penalties" of imprisonment, banishment, punitive confiscation of property or "a legislative enactment barring designated individuals or groups from participation in specified employments or vocations," ¹ it is a recognized mode of punishment in certain circumstances. ² Second, given the unique facts presented by this case, we are unable to conceive of any non-punitive, legitimate municipal purpose justifying the passage of R83-65. Considering the third test for determining a bill of attainder penalty, the record clearly evinces a legislative intent to punish the...