Clark v. Hammer
| Decision Date | 09 May 1972 |
| Docket Number | Civ. A. No. 14824. |
| Citation | 342 F. Supp. 855 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Peter CLARK and Bruce A. Morrison v. Lucy T. HAMMER, individually and in her capacity as Chairman, Board of Directors, Connecticut Student Loan Foundation, et al. |
Peter Clark, pro se.
Bruce A. Morrison, pro se.
Ralph G. Elliot, Alcorn, Bakewell & Smith, Hartford, Conn., for defendants.
Granting Motion to Convene a Three-Judge Court May 9, 1972.
Plaintiffs, students at the Yale Law School, challenge the constitutionality of Conn.Gen.Stat. § 10-361(a) and § 1(c) (2) of the Regulations of the Connecticut Student Loan Foundation. The statute provides that no one shall be eligible for a loan from the Foundation unless he has been a resident of Connecticut for at least one year prior to application. The regulation provides, inter alia, that Connecticut residence cannot be gained while one is a student at an institution of higher learning.
Plaintiffs allege these facts. They moved to Connecticut during September of 1970 to attend the Yale Law School. Both had previously lived in Illinois. Both have resided in Connecticut since September, 1970, both are Connecticut voters, both are married, both hold part-time jobs. Both claim to have no present intention to change domicile and claim to be fully emancipated from their parents.
Both plaintiffs submitted applications for student loans during the summer of 1971, both were rejected for failure to fulfill the one year residency requirement. Subsequently, after living in Connecticut one year, each renewed his application, which were this time denied because of the regulation against students gaining residence while in attendance at institutions of higher learning. Both claim that these regulations violate, inter alia, their right to travel, the equal protection clause of the Fourteenth Amendment, and the due process clause of the Fourteenth Amendment.
Plaintiffs base their cause of action upon 42 U.S.C. § 1983 and claim jurisdiction under 28 U.S.C. § 1343(3), and seek the convening of a three-judge court. Defendants' brief in opposition to the three-judge court raises several objections, including claims that the Foundation is not a state agency, its officers are not state officials, and that the challenged regulation is not a state statute. Among these objections, defendants note that § 1343(3) does not confer jurisdiction for complaints concerning the loss of money. While the reference is oblique, the point is jurisdictional, and must be considered.
The starting point for any discussion of § 1343(3) jurisdiction is Mr. Justice Stone's concurring opinion in Hague v. C.I.O., 307 U.S. 496, 518, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). That opinion stressed the incongruity of reading § 1343(3) so as to completely overlap with 28 U.S.C. § 1331, the general federal question provision. Instead, Justice Stone thought that the civil rights provision applied only "whenever the right of immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights." 307 U.S. at 531, 59 S.Ct. at 971. However, as Judge Friendly so aptly stated in his scholarly opinion in Eisen v. Eastman, 421 F.2d 560, 564 (2d Cir.1969), this definition "has been considerably easier to state than to apply."
The issue here is whether the plaintiffs' claim is a liberty claim, for which § 1343(3) provides jurisdiction, or a property claim, which would be considerable under § 1331 if the $10,000 jurisdictional amount were properly pleaded. There appear to be two distinct aspects of the problem that require analysis. The first is the nature of what is immediately at issue—that is, what the plaintiff is suing to obtain or to be free of. As Eisen teaches, there is a spectrum at one end of which are complaints that property has been taken, Ream v. Handley, 359 F.2d 728 (7th Cir.1966), Howard v. Higgins, 379 F.2d 227 (10th Cir. 1967), and at the other end of which are denials of "pure" liberty, such as the right to vote, to enjoy freedom of speech, and to be free from unreasonable searches and seizures. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). In between, and presenting greater difficulty of classification, are cases that can be viewed as either property or liberty claims, such as those involving loss of employment. The latter have been refined into two classes: suits to obtain or hold only a particular job, which are said to be property claims, Tichon v. Harder, 438 F.2d 1396 (2d Cir.1971), and suits complaining of the loss of the opportunity to earn a living, which are said to be liberty claims. Birnbaum v. Trussell, 371 F.2d 672 (2d Cir.1966).
Also occupying the middle of the spectrum are certain claims for money. While these might be thought to be clear property claims, that apparent certainty has evaporated whenever the money claimed is a public welfare benefit. In those situations, if the loss of money is viewed as impairing a right to minimal existence, the claim is considered to be one of personal liberty. Johnson v. Harder, 438 F.2d 7 (2d Cir.1971). Whether this is really a consistent application of the Eisen formulation or an exception to it is not entirely clear. See Johnson v. Harder, supra, at 12 n. 6. This special treatment of welfare cases has prompted a three-judge court in this district to describe as liberty claims those suits for any money which is "closely linked by custom to an expenditure to secure or protect a right which is in some sense `personal' and incapable of monetary valuation." Lynch v. Household Finance Corp., 318 F.Supp. 1111, 1114 (D.Conn. 1970), prob. juris. noted, 401 U.S. 935, 91 S.Ct. 962, 28 L.Ed.2d 214 (1971).
Under the illumination of these cases, the basic claim of these plaintiffs lies at the property end of the spectrum. They seek a loan of money; or more precisely, they seek the right to obtain such a loan at the favorable interest rates of the Connecticut Student Loan Foundation. Plainly, the difference between such a favorable loan and a loan from conventional sources can be quantified as a precise sum of money. Even if these plaintiffs were unable to obtain loans from other sources (a contention not clearly pleaded), their claim is nonetheless for money.
Nor does the purpose for which the loan is sought transform this claim into a personal liberty one. Education, even at the Yale Law School, however important, is not the equivalent of subsistence. Moreover, plaintiffs allege that they are currently enrolled at the Yale Law School, thereby demonstrating that the loss of the economic benefit they seek has not deprived them of that educational opportunity.
However, there is a second, more troublesome aspect of the problem. Cases following Eisen have suggested that attention must focus not only on the right or immunity immediately at issue (here the loan) but also upon whatever underlying rights are consequentially impaired by the challenged action. Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.1970), was the first to open this line of inquiry. The claim in Escalera was for public housing, and the court conceded that this was a property claim. Nevertheless, jurisdiction under § 1343(3) was sustained on the ground that the denial of housing had been effectuated through a denial of procedural due process. Assertion of the underlying right to procedural due process was deemed sufficient for § 1343(3) jurisdiction. Recognizing the far-reaching implications of this approach, subsequent decisions have cut back upon Escalera's broad scope. In Lynch, supra, the three-judge court rejected a deprivation of procedural due process as a basis for § 1343(3) jurisdiction where the matter claimed was monetary. Escalera was viewed in retrospect as a case involving a basic claim for "scarce" public housing, and thus more akin to liberty than property. 318 F. Supp. at 1114. The Court of Appeals then flatly rejected the notion that a lack of procedural due process in the taking of property provided civil rights jurisdiction. Tichon v. Harder, supra; Tucker v. Maher, 441 F.2d 740 (2d Cir. 1971).
While Tichon seemingly foreclosed the Escalera exception, it nonetheless kept alive the inquiry as to the impairment of underlying rights. While it refused to predicate jurisdiction on denial of procedural due process, the opinion did suggest that denial of a property right, such as a specific job, might present a liberty claim where the loss of the job impairs rights protected by the first eight amendments. Among examples given were discharges based on an employee's exercise of First Amendment rights, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), or on the fact that he invoked his self-incrimination privilege, Slochower v. Bd. of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1966). The consequential impairment of rights secured by the first eight amendments was distinguished from general Fourteenth Amendment due process and equal protection claims, which were viewed as having no independent jurisdictional significance.1Tichon, supra, 438 F.2d at 1399-1400 and n. 5; see also Roberge v. Philbrook, 313 F.Supp. 608, 612 (D.Vt.1970).
The inquiry suggested by Tichon compels some consideration of the merits of this case. These plaintiffs make two broad claims. The first is that denial of the loan based on the statutory one-year durational residency requirement impairs their constitutionally protected right to travel. Cf. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L. Ed.2d 600 (1969). Since it is unclear whether that right finds its protection in some of the first eight amendments or in the Fourteenth, see Shapiro v. Thompson, supra, at 666-671, 89 S.Ct....
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