NJ Governor and substantive due process

[Edward A Hartnett]

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  
 law?                                                                       
                                                                            
 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?                               
                                                                            
 Ed Hartnett                                                                
 Seton Hall