# Texas v. New Mexico (494 U.S. 111)/Dissent O'Connor

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion O'Connor
United States Supreme Court
494 U.S. 111
State of Texas v. State of New Mexico
No. 87-1965. Argued: October 11, 1989. --- Decided: February 27, 1990.
Justice O'CONNOR, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice KENNEDY join, dissenting.
Without doubt, respondent Burch alleges a serious deprivation of liberty; yet equally clearly he alleges no violation of the Fourteenth Amendment. The Court concludes that an allegation of state actors' wanton, unauthorized departure from a State's established policies and procedures, working a deprivation of liberty, suffices to support a procedural due process claim even though the State provides adequate post-deprivation remedies for that deprivation. The Court's opinion unnecessarily transforms well-established procedural due process doctrine and departs from controlling precedent. I respectfully dissent.
Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), should govern this case. Only by disregarding the gist of Burch's complaint-that state actors' wanton and unauthorized departure from established practice worked the deprivation-and by transforming the allegations into a challenge to the adequacy of Florida's admissions procedures can the Court attempt to distinguish this case from Parratt and Hudson. Burch alleges a deprivation occasioned by petitioners' contravention of Florida's established procedures. Florida allows the voluntary admission process to be employed to admit to its mental hospitals only patients who have made "application by express and informed consent for admission," and requires that the elaborate involuntary admission process be used to admit patients requiring treatment and incapable of giving such consent. See Fla.Stat. §§ 394.465, 394.467 (1981). Burch explicitly disavows any challenge to the adequacy of those established procedural safeguards accompanying Florida's two avenues of admission to mental hospitals. See Brief for Respondent 5 ("[T]he constitutional adequacy of Florida's voluntary admission and treatment procedures has never been an issue in this case since Burch was committed as an involuntary patient for purposes of this appeal"); id., at 6 ("Burch is not attacking the facial validity of Florida's voluntary admission procedures any more than he is attacking the facial validity of Florida's involuntary admission procedures"). Nor does the complaint allege any widespread practice of subverting the State's procedural safeguards. Burch instead claims that in his case petitioners wrongfully employed the voluntary admission process deliberately or recklessly to deny him the hearing that Florida requires state actors to provide, through the involuntary admission process, to one in his position. He claims that petitioners "knew or should have known" that he was incapable of consent but "with willful, wanton and reckless disregard of and indifference to" his constitutional rights "subjected him to involuntary commitment" without any hearing "at which he could have challenged his involuntary admission and treatment." App. to Pet. for Cert. 200-202 (complaint); see Brief for Respondent i, n. 1 ("The complaint alleges an intentional, involuntary commitment of Respondent by Petitioners . . ."). Consistent with his disavowal of any attack upon the adequacy of the State's established procedures, Burch alleges that petitioners flagrantly and at least recklessly contravened those requirements. In short, Burch has alleged that petitioners' unauthorized actions worked the deprivation of his liberty.
Parratt and Hudson should readily govern procedural due process claims such as respondent's. Taken together, the decisions indicate that for deprivations worked by such random and unauthorized departures from otherwise unimpugned and established state procedures the State provides the process due by making available adequate postdeprivation remedies. In Parratt, the Court addressed a deprivation which "occurred as a result of the unauthorized failure of agents of the State to follow established state procedure." 451 U.S., at 543, 101 S.Ct., at 1916. The random nature of the state actor's unauthorized departure made it not "practicable for the State to provide a predeprivation hearing," ibid., and adequate postdeprivation remedies available through the State's tort system provided the process due under the Fourteenth Amendment. Hudson applied this reasoning to intentional deprivations by state actors and confirmed the distinction between deprivation pursuant to "an established state procedure" and that pursuant to "random and unauthorized action." 468 U.S., at 532-533, 104 S.Ct., at 3203; cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-436, 102 S.Ct. 1148, 1157-58, 71 L.Ed.2d 265 (1982). In Hudson, the Court explained that the Parratt doctrine was applicable because "the state cannot possibly know in advance of a negligent deprivation of property," and that "[t]he controlling inquiry is solely whether the state is in a position to provide for predeprivation process." 468 U.S., at 534, 104 S.Ct., at 3204.
Application of Parratt and Hudson indicates that respondent has failed to state a claim allowing recovery under 42 U.S.C. § 1983 (1982 ed.). Petitioners' actions were unauthorized: they are alleged to have wrongly and without license departed from established state practices. Cf. Hudson, supra, 468 U.S., at 532-533, 104 S.Ct., at 3203; Parratt, supra, 451 U.S., at 543, 101 S.Ct., at 1916. Florida officials in a position to establish safeguards commanded that the voluntary admission process be employed only for consenting patients and that the involuntary hearing procedures be used to admit unconsenting patients. Yet it is alleged that petitioners "with willful, wanton and reckless disregard of and indifference to" Burch's rights contravened both commands. As in Parratt, the deprivation "occurred as a result of the unauthorized failure of agents of the State to follow established state procedure." 451 U.S., at 543, 101 S.Ct., at 1916. The wanton or reckless nature of the failure indicates it to be random. The State could not foresee the particular contravention and was hardly "in a position to provide for predeprivation process," Hudson, supra, 468 U.S., at 534, 104 S.Ct., at 3204, to ensure that officials bent upon subverting the State's requirements would in fact follow those procedures. For this wrongful deprivation resulting from an unauthorized departure from established state practice, Florida provides adequate postdeprivation remedies, as two courts below concluded, and which the Court and respondent do not dispute. Parratt and Hudson thus should govern this case and indicate that respondent has failed to allege a violation of the Fourteenth Amendment.
The allegedly wanton nature of the subversion of the state procedures underscores why the State cannot in any relevant sense anticipate and meaningfully guard against the random and unauthorized actions alleged in this case. The Court suggests that the State could foresee "that a person requesting treatment for mental illness might be incapable of informed consent." Ante, at 136. While foreseeability of that routine difficulty in evaluating prospective patients is relevant in considering the general adequacy of Florida's voluntary admission procedures, Parratt and Hudson address whether the State can foresee and thus be required to forestall the deliberate or reckless departure from established state practice. Florida may be able to predict that over time some state actors will subvert its clearly implicated requirements. Indeed, that is one reason that the State must implement an adequate remedial scheme. But Florida "cannot predict precisely when the loss will occur," Parratt, supra, 451 U.S., at 541, 101 S.Ct., at 1916, and the Due Process Clause does not require the State to do more than establish appropriate remedies for any wrongful departure from its prescribed practices.
The Court attempts to avert the force of Parratt and Hudson by characterizing petitioners' alleged failures as only the routine but erroneous application of the admission process. According to the Court, Burch suffered an "erroneous deprivation," ante, at 136, and the "risk of deprivations of the kind Burch alleges" is that incompetent "persons who come into Florida's mental health facilities will apparently be willing to sign forms," ante, at 133, prompting officials to "mak[e] random and unauthorized errors in the admission process," ante, at 135. The Court's characterization omits petitioners' alleged wrongful state of mind and thus the nature and source of the wrongful deprivation.
A claim of negligence will not support a procedural due process claim, see Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and it is an unresolved issue whether an allegation of gross negligence or recklessness suffices, id., at 334, n. 3, 106 S.Ct., at 666, n. 3. Respondent, if not the Court, avoids these pitfalls. According to Burch, petitioners "knew" him to be incompetent or were presented with such clear evidence of his incompetence that they should be charged with such knowledge. App. to Pet. for Cert. 201. Petitioners also knew that Florida law required them to provide an incompetent prospective patient with elaborate procedural safeguards. Far from alleging inadvertent or negligent disregard of duty, respondent alleges that petitioners "acted with willful, wanton and reckless disregard of and indifference" to his rights by treating him without providing the hearing that Florida requires. Id., at 202. That is, petitioners did not bumble or commit "errors" by taking Burch's "apparent willingness to be admitted at face value." Ante, at 135, 136. Rather, they deliberately or recklessly subverted his rights and contravened state requirements.
The unauthorized and wrongful character of the departure from established state practice makes additional procedures an "impracticable" means of preventing the deprivation. "The underlying rationale of Parratt is that when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply 'impracticable' since the state cannot know when such deprivations will occur." Hudson, 468 U.S., at 533, 104 S.Ct., at 3203; see Parratt, supra, 451 U.S., at 541, 101 S.Ct., at 1916. The Court suggests that additional safeguards surrounding the voluntary admission process would have quite possibly reduced the risk of deprivation. Ante, at 135-137. This reasoning conflates the value of procedures for preventing error in the repeated and usual case (evaluated according to the test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)) with the value of additional predeprivation procedures to forestall deprivations by state actors bent upon departing from, or indifferent to, complying with established practices. Unsurprisingly, the Court is vague regarding how its proffered procedures would prevent the deprivation Burch alleges, and why the safeguards would not form merely one more set of procedural protections that state employees could willfully, recklessly, and wantonly subvert. Indeed, Burch alleges that, presented with the clearest evidence of his incompetence, petitioners nonetheless wantonly or recklessly denied him the protections of the State's admission procedures and requirements. The state actor so indifferent to guaranteed protections would be no more prevented from working the deprivation by additional procedural requirements than would the mail handler in Parratt or the prison guard in Hudson. In those cases, the State could have, and no doubt did, provide a range of predeprivation requirements and safeguards guiding both prison searches and care of packages. See Parratt, 451 U.S., at 530, 101 S.Ct., at 1910; id., at 543, 101 S.Ct., at 1916. ("[T]he deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are inadequate . . ."). In all three cases, the unpredictable, wrongful departure is beyond the State's reasonable control. Additional safeguards designed to secure correct results in the usual case do not practicably forestall state actors who flout the State's command and established practice.
Even indulging the Court's belief that the proffered safeguards would provide "some" benefit, Parratt and Hudson extend beyond circumstances in which procedural safeguards would have had "negligible" value. Ante, at 129. In Parratt and Hudson additional measures would conceivably have had some benefit in preventing the alleged deprivations. A practice of barring individual or unsupervised shakedown searches, a procedure of always pairing or monitoring guards, or a requirement that searches be conducted according to "an established policy" (the proposed measure rejected as unnecessary in Hudson, supra, 468 U.S., at 528-530, 104 S.Ct., at 3201-02) might possibly have helped to prevent the type of deprivation considered in Hudson. More sensible staffing practices, better training, or a more rigorous tracking procedure may have averted the deprivation at issue in Parratt. In those cases, like this one, the State knew the exact context in which the wrongful deprivation would occur. Yet the possibility of implementing such marginally beneficial measures, in light of the type of alleged deprivation, did not alter the analysis. The State's inability to foresee and to forestall the wrongful departure from established procedures renders additional predeprivation measures "impracticable" and not required by the dictates of due process. See Hudson, supra, at 533, 104 S.Ct., at 3203; Parratt, supra, 451 U.S., at 541, 101 S.Ct., at 1916.
Every command to act imparts the duty to exercise discretion in accord with the command and affords the opportunity to abuse that discretion. The Mathews test measures whether the State has sufficiently constrained discretion in the usual case, while the Parratt doctrine requires the State to provide a remedy for any wrongful abuse. The Court suggests that this case differs from Parratt and Hudson because petitioners possessed a sort of delegated power. See ante, at 135-138. Yet petitioners no more had the delegated power to depart from the admission procedures and requirements than did the guard in Hudson to exceed the limits of his established search and seizure authority, or the prison official in Parratt wrongfully to withhold or misdeliver mail. Petitioners' delegated duty to act in accord with Florida's admission procedures is akin to the mail handler's duty to follow and implement the procedures surrounding delivery of packages, or the guard's duty to conduct the search properly. In the appropriate circumstances and pursuant to established procedures, the guard in Hudson was charged with seizing property pursuant to a search. The official in Parratt no doubt possessed some power to withhold certain packages from prisoners. Parratt and Hudson distinguish sharply between deprivations caused by unauthorized acts and those occasioned by established state procedures. See Hudson, supra, 468 U.S., at 532, 104 S.Ct., at 3203; Parratt, supra, 451 U.S., at 541, 101 S.Ct., at 1916; accord, Logan, 455 U.S., at 435-436, 102 S.Ct., at 1157-58. The e delegation argument blurs this line and ignores the unauthorized nature of petitioners' alleged departure from established practices.
The suggestion that the State delegated to petitioners insufficiently trammeled discretion conflicts with positions that the Court ostensibly embraces. The issue whether petitioners possessed undue discretion is bound with, and more properly analyzed as, an aspect of the adequacy of the State's procedural safeguards, yet the Court claims Burch did not present this issue and purports not to decide it. See ante, at 117, and n. 3, 135-136; but see infra, at 150-151. By suggesting that petitioners' acts are attributable to the State, cf. ante, at 135-136, the Court either abandons its position that "Burch does not claim that he was deprived of due process by an established state procedure," ante, at 117, n. 3, or abandons Parratt and Hudson' § distinction between established procedures and unauthorized departures from those practices. Petitioners were not charged with formulating policy, and the complaint does not allege widespread and common departure from required procedures. Neither do the Court's passing reflections that a hearing is constitutionally required in the usual case of treatment of an incompetent patient advance the argument. Ante, at 117, 135. That claim either states the conclusion that the State's combined admission procedures are generally inadequate, or repudiates Parratt and Hudson' § focus upon random and unauthorized acts and upon the State's ability to formulate safeguards. To the extent that a liberty interest exists in the application of the involuntary admission procedures whenever appropriate, it is the random and unauthorized action of state actors that effected the deprivation, one for which Florida also provides adequate postdeprivation process. See Fla.Stat. § 768.28(1) (1981) (partial waiver of immunity, allowing tort suits); § 394.459(13) (providing action against "[a]ny person who violates or abuses any rights or privileges of patients" provided by the Florida Mental Health Act).
The Court's delegation of authority argument, like its claim that "we cannot say that predeprivation process was impossible here," ante, at 136, revives an argument explicitly rejected in Hudson. In Hudson, the Court rebuffed the argument that "because an agent of the state who intends to deprive a person of his property can provide predeprivation process, then as a matter of due process he must do so." 468 U.S., at 534, 104 S.Ct., at 3204 (internal quotation omitted). By failing to consider whether "the state cannot possibly know in advance" of the wrongful contravention and by abandoning "[t]he controlling inquiry . . . whether the state is in a position to provide for predeprivation process," the Court embraces the "fundamental misunderstanding of Parratt." Ibid. Each of the Court's distinctions abandons an essential element of the Parratt and Hudson doctrines, and together they disavow those cases' central insights and holdings.
The Court's reliance upon the State's inappropriate delegation of duty also creates enormous line-drawing problems. Today's decision applies to deprivations occasioned by state actors given "little guidance" and "broadly delegated, uncircumscribed power" to initiate required procedures. Ante, at 135, 136. At some undefined point, the breadth of the delegation of power requires officials to channel the exercise of that power or become liable for its misapplications. When guidance is provided and the power to effect the deprivation circumscribed, no liability arises. And routine exercise of the power must be sufficiently fraught with the danger of "erroneous deprivation." Ante, at 136. In the absence of this broadly delegated power that carries with it pervasive risk of wrongful deprivation, Parratt and Hudson still govern. In essence, the Court's rationale applies when state officials are loosely charged with fashioning effective procedures or ensuring that required procedures are not routinely evaded. In a roundabout way, this rationale states the unexceptional conclusion that liability exists when officials' actions amount to the established state practice, a rationale unasserted in this case and, otherwise, appropriately analyzed under the Mathews test.
The Court's decision also undermines two of this Court's established and delicately related doctrines, one articulated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and the other articulated in Parratt. As the Court acknowledges, the procedural component of the Due Process Clause requires the State to formulate procedural safeguards and adequate postdeprivation process sufficient to satisfy the dictates of fundamental fairness and the Due Process Clause. Ante, at 127. Until today, the reasoning embodied in Mathews largely determined that standard and the measures a State must establish to prevent a deprivation of a protected interest from amounting to a constitutional violation. Mathews employed the now familiar three-part test (considering the nature of the private interest, efficacy of additional procedures, and governmental interests) to determine what predeprivation procedural safeguards were required of the State. 424 U.S., at 335, 96 S.Ct., at 903. That test reflects a carefully crafted accommodation of conflicting interests, weighed and evaluated in light of what fundamental fairness requires. Parratt drew upon concerns similar to those embodied in the Mathews test. For deprivations occasioned by wrongful departures from unchallenged and established state practices, Parratt concluded that adequate postdeprivation process meets the requirements of the Due Process Clause because additional predeprivation procedural safeguards would be "impracticable" to forestall these deprivations. 451 U.S., at 541, 101 S.Ct., at 1916. The Mathews and Parratt doctrines work in tandem. State officials able to formulate safeguards must discharge the duty to establish sufficient predeprivation procedures, as well as adequate postdeprivation remedies to provide process in the event of wrongful departures from established state practice. The doctrines together define the procedural measures that fundamental fairness and the Constitution demand of the State.
The Court today discovers an additional realm of required procedural safeguards. Now, all procedure is divided into three parts. In place of the border clearly dividing the duties required by Mathews from those required by Parratt, the Court marks out a vast terra incognita of unknowable duties and expansive liability of constitutional dimension. The Mathews test, we are told, does not determine the State's obligation to provide predeprivation procedural safeguards. Rather, to avoid the constitutional violation a State must have fully circumscribed and guided officials' exercise of power and provided additional safeguards, without regard to their efficacy or the nature of the governmental interests. Even if the validity of the State's procedures is not directly challenged, the burden is apparently on certain state actors to demonstrate that the State sufficiently constrained their powers. Despite the many cases of this Court applying and affirming Mathews, it is unclear what now remains of the test. And the Parratt doctrine no longer reflects a general interpretation of the Due Process Clause or the complement of the principles contained in Mathews. It is, instead, dis placed when the State delegates certain types of duties in certain inappropriate ways. This resulting "no man's land" has no apparent boundaries. We are provided almost no guidance regarding what the Due Process Clause requires, how that requirement is to be deduced, or why fundamental fairness imposes upon the States the obligation to provide additional safeguards of nearly any conceivable value. We are left only with the implication that where doubt exists, liability of constitutional dimension will be found. Without so much as suggesting that our prior cases have warned against such a result, the Court has gone some measure to " 'make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.' " Parratt, 451 U.S., at 544, 101 S.Ct., at 1917 (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976)).
The Court's departure from the Mathews and Parratt doctrines is particularly unjustified because it is unnecessary for resolution of this case. While I believe that Burch's complaint and subsequent argument do not properly place before the Court a traditional challenge to Florida's voluntary admission procedures, the Court, without so declaring, has decided otherwise. Yet, rather than acknowledge this course, the Court crafts its doctrinal innovations.
Understandably reluctant to grapple with Burch's framing of his complaint, the Court less understandably avoids that difficulty of pleading by creating the innovation which so disrupts established law. The Court discovers that "Burch's suit is neither an action challenging the facial adequacy of a State's statutory procedures, nor an action based only on state officials' random and unauthorized violation of state laws." Ante, at 136. That is, Burch's suit is not one that established law supports, and thus requires today's unwarranted departure.
The Court believes that Florida's statutory scheme contains a particular flaw. Ante, at 135-137. That statutory omission involves the determination of competence in the course of the voluntary admission process, and the Court signals that it believes that these suggested additional safeguards would not be greatly burdensome. Ante, at 135-138. The Court further believes that Burch's complaint and argument properly raise these issues and that adopting the additional safeguards would provide relevant benefit to one in Burch's position. The traditional Mathews test was designed and, until today, has been employed to evaluate and accommodate these concerns. See Washington v. Harper, 494 U.S. 210, 228-235, 110 S.Ct. 1028, 1040-1044, 108 L.Ed.2d 178 (1990) (applying Mathews test, rather than approach suggested today, to evaluate the adequacy of a State's procedures governing administration of antipsychotic drugs to prisoners). That test holds Florida to the appropriate standard and, given the Court's beliefs set out above, would perhaps have yielded a result favoring respondent. While this approach, if made explicit, would have required a strained reading of respondent's complaint and arguments, that course would have been far preferable to the strained reading of controlling procedural due process law that the Court today adopts. Ordinarily, a complaint must state a legal cause of action, but here it may be said that the Court has stated a novel cause of action to support a complaint.
I respectfully dissent.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse