NJ Governor and substantive due process
Edward A Hartnett
hartneed at shu.edu
Thu Oct 14 06:15:48 PDT 2004
The US Court of Appeals for the Third Circuit has rejected a claim that
there should be a special election to fill the office of NJ Governor,
holding, as a matter of NJ law, that McGreevey has not resigned. That
decision is hardly unexpected. But there are two aspects of the case about
which I would appreciate hearing comments from the list.
First, the court accepted the argument that _if_ New Jersey law required an
election, it would be a violation of federal substantive due process to
fail to hold it. In doing so, it relied heavily on a 2001 decision by the
Court of Appeals for the First Circuit, Bonas v. Springfield, 265 F.3d 69,
where the court wrote:
"In this chiaroscuro corner of the law, one thing is clear: total and
complete disenfranchisement of the electorate as a whole is patently and
fundamentally unfair (and, hence, amenable to rectification in a federal
court). Here, our evaluation of whether such widespread disenfranchisement
has occurred starts--and ends--with a question of state law: Do state and
local rules mandate an election . . . ? Assuming that such an election is
required--a topic to which we shortly shall return--the Town's refusal to
hold it would work a total and complete disenfranchisement of the
electorate, and therefore would constitute a violation of due process (in
addition to being a violation of state law)." Id. at 75.
Under this analysis, there is no difference between the state law issue
and the federal constitutional issue. If the state law requires an
election, it violates substantive due process to fail to hold the
election; if the state law does not require an election, there is no
federal consitutional violation either. As the McGreevey court put it:
"Assuming New Jersey law requires an election in this case, refusal to
hold it would rise to the level of a constitutional violation.
"The determinative inquiry, therefore, is whether New Jersey law requires
an election under these circumstances. As we discuss, we answer that
question in the negative. Therefore, there is no violation of plaintiffs'
substantive due process rights, and they have failed to state a claim
under section 1983."
There are, of course, a number of areas where a determination of state law
is generally a predicate for determining whether there has been a federal
constitutional violation, e.g., a state law decision to make a particular
office elective as a predicate for an equal protection voting rights
claim; a state law contract as a predicate for a contract clause claim; a
state law property right as a predicate for a procedural due process
claim. But are there any other areas where a federal constitutional
question is understood to "start -- and end" with a question of state
Indeed, is the principle announced so confidently by the First and Third
Circuits so clear -- or even correct? If state law completely determines
the matter, so that state law determines completely whether or not to hold
an election for a particular office at a particular time, is the claim of
"total and complete disenfranchisement" anything but rhetoric?
Second, the McGreevey court denominated its opinion "Not Precedential."
How can a decision that concludes that a violation of state law is, ipso
facto, a violation of the federal constitution -- and that determines
whether a special gubernatorial election will be held -- be viewed as one
that "appears to have value only to the trial court or the parties,"
rather than one that "has precedential or institutional value"? See Third
Circuit IOP 5.2, 5.3. Isn't this the sort of use of non-precedential
opinions that gives the practice a bad name?
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