Coliseum Enterprises, Inc. v. Campbell

Coliseum Enterprises, Inc. v. Campbell (2000-576); 173 Vt. 585; 795 A.2d 1212

[Filed 25-Feb-2002]


                                 ENTRY ORDER
                      
                      SUPREME COURT DOCKET NO. 2000-576

                             JANUARY TERM, 2002

  Coliseum Enterprises, Inc.         }	APPEALED FROM:
                                     }
                                     }
       v.                            }	Chittenden Superior Court
                                     }
  Colin Campbell, et al.             }
                                     }	DOCKET NO. S636-99 CnC


                                        Trial Judge:  David A. Jenkins

       In the above-entitled cause, the Clerk will enter:

       Plaintiffs Coliseum Enterprises and Shawn B. Cliche appeal from an
  order of the Chittenden Superior Court granting summary judgment to
  defendants who are individual members of the Burlington Local Control
  Commission.  Plaintiffs brought an action under 42 U.S.C. § 1983 claiming
  that the commissioners violated plaintiffs' due process rights when they
  rescinded their recommendation that the Vermont Liquor Control Board
  approve plaintiffs' application for a liquor license.  Plaintiffs also
  claimed that defendants tortiously interfered with plaintiffs' business
  under state law.  We agree with the trial court that defendants are
  entitled to qualified immunity from suit.  Accordingly, we affirm.

       On October 21, 1996 the commissioners considered plaintiffs'
  application for a first class liquor license.  After hearing testimony in
  favor of and opposed to the application the commissioners approved
  plaintiffs' application by a vote of 8-6.  According to state law, once an
  application has been approved by a local commission, the application is
  passed on to the state board for it to investigate the applicant and
  approve or disapprove of the application.  7 V.S.A. § 222.  Accordingly,
  plaintiffs' application was forwarded to the board.  Before the board acted
  on the application, however, the Burlington commissioners decided to
  reconsider its prior vote at a November 18 meeting.  Plaintiffs were
  present at this meeting and given an opportunity to be heard, as were
  others in attendance.  At the conclusion of this meeting, the commissioners
  voted by 12-1 to rescind the approval of the application.

        
       Plaintiffs brought suit in superior court arguing that the
  commissioners violated plaintiffs' constitutional rights by taking their
  property, the liquor license, without due process of law.  They sought
  money damages only under 42 U.S.C. § 1983, which provides relief to those
  harmed by the "deprivation of any rights, privileges, or immunities secured
  by the Constitution" by anyone acting "under color" of state law.  Id. 
  Plaintiffs also claimed that the commissioners had engaged in tortious
  interference with plaintiffs' business.  Both parties filed motions for
  summary judgment.  

  

  The court granted defendants' motion and denied plaintiffs' on the grounds
  that defendants did not improperly deprive plaintiffs of a property
  interest because there was no license granted to them, and plaintiffs have
  no property interest in only an approved license application.  The court
  further held that defendants are entitled to qualified immunity because
  they were public officials acting in good faith.  Plaintiffs appeal.

       On appeal, plaintiffs argue that the original vote of the
  commissioners bestowed upon plaintiffs a property interest in a liquor
  license that could be revoked only with due process.  They base their
  argument on the fact that a high percentage of applicants whose licenses
  were approved by the local commissions were also approved by the state
  board.  From this statistic, plaintiffs conclude that there was a strong
  likelihood that the board would have approved their application, vesting
  plaintiffs with a property interest in the license, and thus due process
  protections should attach following the approval of the local
  commissioners.  The manner in which the commissioners rescinded the
  application, plaintiffs contend, did not comport with due process because
  the commissioners did not comply with the revocation proceedings laid out
  in 7 V.S.A. § 236.  Plaintiffs also argue that the commissioners are not
  protected by qualified immunity because § 236 states the "clearly
  established law" in Vermont for revoking a liquor license of which the
  commissioner should have known. 

       We need not address the question of whether plaintiffs had a property
  interest in the liquor license following the original vote of the
  commissioners because we find that the commissioners are immune from suit.  
  We have recognized that "[i]mmunity is a defense to § 1983 actions for
  damages against persons in their individual capacity."  Billado v. Appel,
  165 Vt. 482, 486, 687 A.2d 84, 87 (1996).  Although certain individuals
  acting in a legislative, judicial or prosecutorial capacity enjoy absolute
  immunity, in this case we are concerned with public officials performing a
  discretionary function who are entitled to qualified immunity.  See id. at
  486-87, 687 A.2d  at 87-88.  Here, the commissioners are immune from suit
  "insofar as their conduct does not violate clearly established statutory or
  constitutional rights of which a reasonable person would have known." 
  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  To overcome the
  commissioners' qualified immunity defense, therefore, plaintiffs must
  identify a "clearly established" right that was violated by the rescission
  of their application.

       Plaintiffs' argument in this regard hinges on the assumption that once
  the local commissioners have approved a license application, the license
  has been "granted."  Relying on this assumption, plaintiffs argue that the
  commissioner failed to comply with the clearly established law for revoking
  a license.  Title7 V.S.A. § 236(a) states that for a "license granted . . .
  [n]o revocation shall be made until the permittee or licensee shall be
  notified and be given a hearing before the liquor control board."  The
  commissioners' failure to comply with this statute, plaintiffs claim,
  deprived them of their due process rights because they had a vested
  property right in the license once it had been "granted."
        
       This argument fails for two reasons.  First, it is not a matter of
  clearly established law that plaintiffs were "granted" a license when the
  commissioners first approved the application in October 

  

  1996.  Nor is it clear how to apply § 236, which provides a hearing before
  the board, not the commissioners.  Indeed, these are the very questions
  presented by this appeal.  Although plaintiffs would have us hold that the
  board's investigations are so cursory that for all practical purposes
  approval at the local level does "grant" a license, plaintiffs' assumption
  does not make it so.  In fact, our statutory regime requires that the state
  board approve all applications before a license is granted.  7 V.S.A. §
  222.  In this case, it is undisputed that this step did not occur before
  the commissioners rescinded their approval.  It is entirely unsettled
  whether an applicant that has proceeded this far in the process is vested
  with a property right in a liquor license.  Thus, we cannot say that the
  commissioners clearly knew that voting on the application "grants" an
  applicant a license and thus all subsequent proceedings must comport with
  due process requirements.  That this matter is an open question is enough
  to end our inquiry because the commissioners did not violate "clearly
  established statutory or constitutional rights."

       Second, even if plaintiffs were "granted" a license by the vote of the
  commissioners and thus the commissioners plainly violated 7 V.S.A. § 236,
  plaintiffs may not use a violation of state law to bootstrap a violation of
  the federal Constitution.  In other words, the contention that the
  commissioners violated § 236 does not by itself give rise to a 42 U.S.C. §
  1983 violation.  Rather, the violation giving rise to the cause of action
  is the alleged deprivation of due process guaranteed by the Fourteenth
  Amendment, not the violation of 7 V.S.A. § 236.  Whether the commissioners
  complied with § 236 does not, without more, answer the question of whether
  the commissioners violated plaintiffs' constitutional due process rights. 
  See Davis v. Scherer, 468 U.S. 183, 195 (1984).  In Davis, the Court held
  that an official sued for a constitutional violation does not lose
  qualified immunity merely because the conduct also violates a state
  statutory or administrative provision.  Id.  Plaintiffs' obligation, under
  Harlow, is to establish that the commissioners' rescission clearly violated
  federal due process law.  They have not done so here.

       Affirmed.


       BY THE COURT:


  _______________________________________
  Jeffrey L. Amestoy, Chief Justice

  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  James L. Morse, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice

  _______________________________________
  Marilyn S. Skoglund, Associate Justice