September 5, 2018
from the United States District Court for the Western
District of Wisconsin. No. 15-cv-581-wmc - William M. Conley,
Easterbrook, Hamilton, and Scudder, Circuit Judges.
EASTERBROOK, Circuit Judge.
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.
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.
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.)
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
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.
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).
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.
Hamilton, Circuit Judge, concurring.
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