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Fritz v. Evers

United States Court of Appeals, Seventh Circuit

October 23, 2018

Mark Fritz, Plaintiff-Appellant,
v.
Tony Evers, Wisconsin State Superintendent of Public Instruction, Defendant-Appellee.

          Argued September 5, 2018

          Appeal from the United States District Court for the Western District of Wisconsin. No. 15-cv-581-wmc - William M. Conley, Judge.

          Before Easterbrook, Hamilton, and Scudder, Circuit Judges.

          EASTERBROOK, Circuit Judge.

         Wisconsin requires public officials to report certain events or suspicions about teachers to the Superintendent of Public Instruction. Wis.Stat. §115.31(3)(a). When a qualifying report is made, the state lists the teacher on a public website as "under investigation". Wis.Stat. §115.31(6)(b). Such a report was made about Mark Fritz in March 2012. In August 2013 the Department of Public Instruction told Fritz that the report about him was not supported by probable cause to believe that he had engaged in misconduct. His name was removed from the site. In this suit under 42 U.S.C. §1983 Fritz alleges that schools would not hire him while he was under investigation. He contends that the state had to afford him a hearing before putting his name on the list of persons under investigation.

         This claim was doomed at the outset by the fact that Fritz sued only the Superintendent, in his official capacity. Section 1983 does not authorize awards of damages against states, and a state official (in his official capacity) is the state. See Will v. Michigan Department of State Police, 491 U.S. 58 (1989). In principle, prospective relief could be available under the approach of Ex parte Young, 209 U.S. 123 (1908), but Fritz does not contend that his name is likely to appear on the "under investigation" list in the future.

         Instead of inviting Fritz to name a different defendant, the district court dismissed the suit on the merits. 2017 U.S. Dist. LEXIS 143840 (W.D. Wis. Sept. 6, 2017). (The opinion says that the suit is dismissed without prejudice, but the judgment is unconditional and therefore with prejudice. Fed.R.Civ.P. 41(b). Thus appellate jurisdiction is secure.) The judge ruled that his complaint does not allege the deprivation of any liberty or property interest, taking the claim outside the scope of the Due Process Clause. (Fritz has abandoned any other theory of recovery.)

         Paul v. Davis, 424 U.S. 693 (1976), holds that defamation by a public official does not violate the Due Process Clause. Defamation is what this complaint alleges, so it fails under Paul. Defamation plus some other injury, such as loss of em- ployment, may require a hearing. See Codd v. Velger, 429 U.S. 624 (1977). But the complaint does not assert that the listing cost Fritz his job. The state statute does not require a teacher under investigation to be fired or otherwise disciplined. It does not authorize adverse action of any kind; it just provides public notice of an investigation. Counsel told us at oral argument that Fritz resigned voluntarily; that's why he was looking for a new position; yet as long as he had a right to maintain his established position it is impossible to blame unemployment on §115.31(6)(b). We therefore agree with the district court that the complaint does not allege a loss of liberty or property.

         There's a further problem. Fritz contends that the Constitution requires a hearing before public notice that a charge is under investigation. Yet our legal tradition is notice first, hearing later. Thus criminal charges are filed, whether by indictment or information, before the accused has an opportunity for a hearing. People are arrested, and criminal investigations begun, before adversarial hearings. If the arrest occurs in a public place, even an ex parte warrant is unnecessary. See United States v. Watson, 423 U.S. 411 (1976). A hearing occurs promptly after an arrest only if the suspect remains in custody. See County of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991). Civil proceedings also begin long before a hearing. Both civil and criminal charges are public, even though being under a cloud may make it hard for the defendant to get a new job while the proceedings are ongoing.

         Probable cause is required to support custody, see Manuel v. Joliet, 137 S.Ct. 911 (2017), but not to support a public charge of crime. "[T]here is no such thing as a constitutional right not to be prosecuted without probable cause." Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013). A criminal trial may occur months if not years after charges become public, and in the interim the accused does not have a constitutional right to a hearing at which a judge will determine whether the grand jury should have issued an indictment. See Kaley v. United States, 571 U.S. 320 (2014).

         Administrative investigations likewise precede hearings. The Federal Trade Commission or Securities and Exchange Commission may conduct a public investigation and defer a hearing until after it issues a charge and discovery has concluded. Judicial review is impossible until the agency makes its final decision. See FTC v. Standard Oil Co., 449 U.S. 232 (1980). Wisconsin followed the traditional approach: it conducted an investigation to see whether a formal proceeding was warranted, and after concluding that it was not the state closed the investigation and removed the public listing. It would upset more than two centuries of practice to declare that approach a violation of the Constitution.

         Affirmed

          Hamilton, Circuit Judge, concurring.

         I agree with my colleagues that the district court's judgment dismissing this case must be affirmed, and I join the court's opinion. Plaintiff Fritz is not entitled to relief under federal law. He has not sued any defendant who could possibly be held liable for damages, and the time for ...


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