## United States Court of Appeals FOR THE EIGHTH CIRCUIT



### ___________ No. 96-2736

_____________ Thomas H. Johnson, III, * * Plaintiff - Appellant, * * On appeal from the United States v. * District Court for the * District of Minnesota City of Minneapolis; John Mori, * Chief Finance Officer; Michael * Cunningham; John Utley, Bond Council; * Sharon Sayles-Belton, Mayor, Member * of the Board of Estimate and Taxation; * Jackie Cherryhomes, Minneapolis City * Council, Member of the Board of * Estimate and Taxation; Jack Qvale, * Executive Secretary of the Board of * Estimate and Taxation; Irving Weiser, * Dain Bosworth, Inc.; Roger Wikner, * Miller & Schroeder Financial Services, * Inc., * * Defendants - Appellees. *

_____________ Submitted: June 10, 1998 Filed: August 13, 1998

_____________The

HONORABLE FERNANDO J. GAITAN, JR., United States District Judg e 1 for the Western District of Missouri, sitting by designation. The HONORABLE JOHN R. TUNHEIM, United States District Judge for the 2 District of Minnesota. Although several plaintiffs were involved i n this case, only Johnson appeals the 3 district court’s final decision. -2- Before BOWMAN, Chief Judge, BEAM, Circuit Judge, and GAITAN, District Judge. 1

_____________ FERNANDO J. GAITAN, JR., District Judge.
Thom as A. Johnson III appeals from the district court’s order of dismissal

. Johnson brought this action pro se on behalf of himself and other pla intiffs. The district court granted defendants’ m otion to dismiss, finding that plaintiffs had not sufficiently pled a class action, had not pled a sufficient property or liberty interest to give rise to due proc ess claims, and had not sufficiently pled equal protection claims. Johnson , now through counsel, appeals the district court’s order as to dismissal of the merits but
no t as to class certification. Because we conclude that the district court correctl y 2 determined that Johnson failed to present any clai ms that could entitle him to relief, we affirm the district court's order dismissing the case.
I. BACKGROUND
Johnson initiated thi s action after the City of Minneapolis purchased the Target Center Arena from private owners in 1995 using the proceeds of a City of Minneapolis bond i ssue. Johnson and the other plaintiffs, all of whom were residents of the City 3 of Minneapol is, objected to the constitutionality of the bond issue and sued in district court on due process and equal protection grounds.-3-

In a four-count complaint, plaintiffs brought two equal protection claims, a claim pursua nt to 42 U.S.C. § 1983, and a § 1985 conspiracy claim. As the district court correctly pointed out, 42 U.S.C. § 1983 does not provide substantive rights, but rather creates a cause of action for deprivation of a claimant’s constitutional rights by an y person under color of state law. 42 U.S.C. § 1985 creates a cause of action fo r conspi racy to deprive any person or class of persons of equal protection of the law

. II. DISCUSSION
We review the distri ct court's Fed.R.Civ.P. 12(b) dismissal of Johnson’s action de novo. S ee Concerned Citizens of Neb. v. United States Nuclear Regulatory Comm'n , 970 F.2d 421, 425 (8th Cir.1992). We must construe the allegations in the comp laint in the light most favorable to Johnson, see id. , and should not approv e dis missal of his complaint for failure to state a claim unless "it appears beyond doubt th at[he] can prove no set of facts in support of his claim which would entitle him t o relief ." Conley v. Gibson , 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 8 0 (1957) (footnote omitted). Appel lant presents only one question on appeal: Did the district court err i n finding that the complaint failed to plead a sufficient declarator y judgment action? This court will first consider this issue in the context of appellant’s due process claim, and then as it relates to the equal protection claims.
A. Due Process A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Movers Warehouse, Inc. v. City of Little Canada , 71 F.3d 716, 718 (8th Cir.1995). Property interests are created by existing rules or understandings that ste m from an independent source, such as state law. Board of Regents v. Roth , 40 8 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).Minneapolis Home Rule Charter Ch. 15, § 9, provides: 4 Up onrequest of the City Council expressed by ordinance or resolutio n adopted by the v otes of two-thirds of all the members thereof, the Board of Estimate and Taxation in its disc retion ... shall have the power to issue an d sell negotiable bonds ... [If the amount of indebtedness exceed s $15,000,000] the Board of Estimate and Taxation shall not issue or sell any [such] bonds ... without approval of a majority of the electors. Minn.Stat. § 469.129(1) states that: 5 The governing body may authorize, issue and sell general obligatio n bonds to finance the acquisition and betterment of real and persona l prop erty needed to carry out the development program within th e development

district. The bonds shall ... be issued in accordance with [enumerated sections of Minn.Stat. Ch. 475]. -4- The appell ant contends that a property interest exists as a result of th e referendum requirement imposed by the Minneap olis Home Rule Charter (“Charter”). 4 The Charter provides direction for the Board of Estimate and Taxation when issuin g bonds, and commands that bond i ssues exceeding $15,000,000 must first be approved by a majority of the electors. However, the bonds that are the subject of this dispute were not issued pursuant to the Charter by the Board of Estimate.
Instead, the bonds were issued by the Minneapolis City Council under th e authority granted in Minn. Stat. 469.129. This statute deals with the issuance o f 5 muni cipal bonds for economic development purposes. Appellant claims that th e provisions of the Charter requiring a referendum sti ll apply. We, like the district court, hold to the contrary. Johnson argues that the Charter still must apply, apparently be cause a Minnesota statute exi sts which, if it were applicable, would subject the issuance of bonds to city charter-based limitations. The problem with Johnson’s argument is that Minn. Stat.Home rule charter cities. 6 Anycity governed by a home rule charter may issue bonds for an y purpose enumerated in subdivision 1 unless forbidden by its charter , except that any such city may issue bonds for the acquisition o f ambulances and related equipment notwithstanding the provisions of its charter; and for other purposes as authorized by its charter. Minn.Stat. § 475.52(2) -5- 47 5.52(2) is not, in fact, applicable to bonds issued pursuant to § 469.129. Sectio n

6 469.129 specifically enumerates several statutes that apply. Minn.Stat. § 475.52(2), imposing charter-base d limitations on the authority to issue bonds, has not been made applicable to § 469.129. Putting another twist on the same a rgument, Johnson claims that this bond issue is a matter of local concern and that therefore, accordi ng to Minnesota law, the Charter should app ly. Although enactments by home rule cities are generally given ful l legislative force in Minnesota, State v. City of Crookston , 91 N.W.2d 81, 83 (Minn. 1958), they are usurped when the state legislature has “expressly or impliedly restricted the municipality’s power over these matters[.]” Gadey v. City of Minneapolis , 51 7 N. W.2d 344, 348 (Minn.Ct.App. 1984); see also, Lilly v. City of Minneapolis , 52 7 NW.2d 107, 111 (Minn.Ct.App. 1995). As discussed, supra, several sections o f Chapter 475 are referenced as applicable to § 469.129, but § 475.52(2) is not one of them. Hence, the referendum requirement of § 475.52(2) is not imposed, or i s “impliedly restricted” from the issuance of bonds pursuant to § 469.129. Becaus e Johnson h ad no legitimate expectation that he would be entitled to vote on any bonds issu ed under Minn. Stat. § 469.129, he lacks a protected liberty or property interes t upon which to base a due process claim.-6-

B. Equal Protection Appellant next argues th at the district court erred in finding there to be no class of people who had received disparate treatment in violation of the equal protectio n clause. To state an equal protection claim, appellant m ust have established that he was treated different

ly from others similarly situated to him. See Klinger v. Department of Correc tions , 31 F.3d 727, 731 (8th Cir.1994), cert. denied, 513 U.S. 1185, 115 S.Ct. 1177, 130 L.Ed.2d 1130 (1995). The district court found that “plaintiffs neither describe the classification at issue nor identify any different

ial treatment to which they have been subjected.” The court, finding that the only class plaintiffs identified was that of qualified voters in the City of Minneapolis, applied rational basis review and dismissed plaintiffs’ claims. On appeal, appellant, through coun sel, now attempts to recharacterize the equal protection claims. “[W]hat [Johnson] meant to say is that his right to vote wa s abrogated.” Brief of Appellant, p. 16. However, the cases cited by appellant ar e inapposite, for they involve legislation that impacted the voting power of a particular group (e.g. racial minority groups), w hereas appellant concedes that this case does not involve a protected class.

Because no protected class is involved, the legislative decision -- to excep t economic developme nt bonds from referendum requirements -- is reviewed only for a rational basis. Where rational bas is review is appropriate, the plaintiff/appellant bears the burden of proof, and th e statute in question bears a strong presumption of validity. F .C.C. v. Beach Communications, Inc. , 508 U.S. 307, 314, 113 S.Ct. 2096, 2101-2, 124 L.Ed.2d 211 (1993) , citing Lyng v. Automobile Workers , 485 U.S. 360, 370, 108 S.Ct. 1184, 119 2, 99 L.Ed.2d 380 (1988). Because we agree that the complaint does not plead an equal protection claim upon which relief could be granted, we also affirm this portion of the district court’s decision.-7-

III. CONCLUSION For the reasons set forth above, we affirm the judgment of the district court. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.