February 29: An Anniversary in Civil Rights Act Law

February 29 comes around only every four years (all right, every four years except for certain years that end in double zeros).  February 29 was the birthdate of Frederic, the male lead in Gilbert and Sullivan’s “The Pirates of Penzance,” a fact that is an important plot point, as is described, among other places, here.  (In fact, as Gilbert and Sullivan buffs know, Frederic was born exactly 160 years ago today, on February 29, 1856).

But of more interest in the area of New Jersey appellate law, two major due process opinions were issued on February 29, 1996, twenty years ago.  Those companion cases, both of which arose under the federal Civil Rights Act, 42 U.S.C. §1983,  were General Motors Corp. v. City of Linden, 143 N.J. 336 (1996), and Rivkin v. Dover Tp. Rent Leveling Bd., 143 N.J. 352 (1996) [Disclsoure:  I argued Rivkin on behalf of an amicus curiae].

In General Motors, that corporation claimed that the City of Linden and certain individuals had violated GM’s right to due process by wrongfully reassessing its property.  GM asserted that the property had been reassessed in retaliation for GM’s having filed tax appeals previously.  GM had already appealed the underlying assessment to the Union County Board of Taxation, which upheld the assessment.  GM then appealed to the Tax Court, an appeal that was pending as the Civil Rights Act case unfolded.

In the Civil Rights Act case, the Law Division granted summary judgment for the defendants, holding that the pendency of the Tax Court appeal deprived the Law Division of jurisdiction, and that defendants had absolute immunity.  On GM’s appeal, the Appellate Division reversed, ruling that the Law Division had jurisdiction and that any immunity enjoyed by defendants was not absolute.  The Supreme Court granted review.

In the interim, the Supreme Court of the United States decided National Private Truck Council v. Oklahoma Tax Comm’n, 515 U.S. 582 (1995).  That case barred state courts from granting relief under 42 U.S.C. §1983 “if state law provides an adequate remedy for relief from unconstitutional tax assessments.”  Writing for a unanimous Supreme Court of New Jersey on GM’s case against Linden, Justice Pollock found that National Private Truck controlled.

As Justice Pollock went on to describe, “New Jersey law provides several opportunities for taxpayers to raise constitutional objections to an added assessment.”  An appeal to the County Board of Taxation was available, and a taxpayer dissatisfied with the result there could appeal to the Tax Court, which would review the issues de novo.  There was a further right to appeal to the Appellate Division.  Given these forms of available remedy, and following National Private Truck, the Supreme Court reinstated the dismissal of GM’s case.

Rivkin was a rent control case.  Plaintiffs owned a mobile home park that was subject to a municipal rent control ordinance.  Plaintiffs applied to the defendant Rent Leveling Board for a rent increase based on capital improvements, as the ordinance permitted.  At a hearing on the application, one member of the Board, Edward Baltarzuk, who “appeared to view his position on the Board as one of advocacy rather than adjudication,” as Justice O’Hern put it in his opinion for a unanimous Court, was openly hostile to plaintiffs’ application.  Plaintiffs sought his disqualification, but the Board would not disqualify him.

The Board awarded only part of what plaintiffs sought.  They appealed to the Law Division, suing under the Civil Rights Act for an alleged deprivation of due process by virtue of the Board’s failure to disqualify Baltarzuk.  The Law Division remanded the matter for a new hearing in which Baltarzuk was not to participate.  At the remand hearing, the Board granted plaintiffs an additional increase, but still not the full amount that they had sought.  The Law Division then granted plaintiffs attorneys’ fees and damages under the Civil Rights Act.  Both sides appealed to the Appellate Division, with plaintiffs complaining that there should not have been a remand to the Board because it was biased, and the Board objecting to the fee and damage award that the Law Division made.

The Appellate Division affirmed on plaintiffs’ appeal, finding the remand order proper.  But the court reversed on the Board’s appeal.  The Appellate Division held that under Parratt v. Taylor, 451 U.S. 527 (1981), since Baltarzuk’s actions were “random and unauthorized” and plaintiffs could and did appeal under state law, that “post-deprivation remedy” afforded sufficient due process.

Justice O’Hern’s opinion for the Supreme Court affirmed that decision.  Even though the available post-deprivation remedy– an action in lieu of prerogative writ– did not afford plaintiffs all the relief that they could have obtained under the Civil Rights Act, particularly attorneys’ fees, that remedy was still sufficient under Parratt.  That disposed of plaintiffs’ procedural due process claim.

Turning to plaintiffs’ contention that they had been denied substantive due process, Justice O’Hern concluded that “the denial of a property right in the context of municipal governance rarely will rise to the level of a substantive due process violation.”  Only “the most egregious governmental abuses against liberty or property rights, abuses that shock the conscience or otherwise offend … judicial notions of fairness … [and that are] offensive to human dignity,” will meet that standard.  The conduct here did not reach that level.

Finally, the Court dismissed plaintiffs’ equal protection claim.  This was “a random act of governmental incompetence,” not a discrimination against plaintiffs based on their membership in any protected class.  Their failed procedural due process claim could not be “relabel[ed]” as equal protection claims.

Both General Motors and Rivkin, then, ruled against Civil Rights Act plaintiffs based on relatively new authority from the Supreme Court of the United States.  Both cases also rested on the availability of remedies (even an after-the-fact remedy, in Rivkin) other than the Civil Rights Act in insulating municipal agencies from these types of Civil Rights Act litigation.