488 F.

2d 748

John E. RAPER et al., Plaintiffs, Appellants,

v.
David J. LUCEY et al., Defendants, Appellees.
No. 73-1224.

United States Court of Appeals,

First Circuit.
Heard Oct. 2, 1973.
Decided Dec. 11, 1973.

Stephen J. Ransford, Holyoke, Mass., for plaintiffs, appellants.

Christopher H. Worthington, Asst. Atty. Gen., with whom Robert H.
Quinn, Atty. Gen., was on brief, for defendants, appellees.
Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and MOORE,*
Senior Circuit Judge.
McENTEE, Circuit Judge.

This action brought under 42 U.S.C. Sec. 1983 (1970) alleges that certain
deficiencies in the current Massachusetts administrative procedures governing
motor vehicle license applications are violative of procedural due process.

Briefly stated, the pertinent facts are as follows. In 1962, at the age of 16,
plaintiff Raper first applied to the Registrar of Motor Vehicles in Massachusetts
for a license to operate motor vehicles. His application was denied but he was
not told why. Since that time Raper periodically renewed his application for a
license. Each time it was denied but the Registrar never gave him any reasons.
Following his most recent application, which was made in early 1972, Raper
received two letters from the Registrar, both of which indicated that his
application was again being denied because "it did not appear advisable" to
issue him a license. However, no specific reasons were stated in either letter.1
After the 1972 denial, Raper took his case to the Board of Appeal on Motor
Vehicle Liability Policies and Bonds (the Board of Appeal) and in May of that
year appeared with counsel before the Board. This meeting was held in Boston

which is the only place in the Commonwealth where the Board meets. At that
time the Board informed plaintiff that it would not exercise its jurisdiction over
the appeal until permission letters, so-called, were obtained from his probation
and parole officers. These letters, which the record shows contained
recommendations, were submitted to the Registrar and the application was
referred back to his office for further consideration. No action having been
taken, by either the Registrar or the Board during the next several months,
plaintiff commenced the instant suit. On motion of the defendants,2 the district
court dismissed the complaint for failure to state a claim upon which relief can
be granted.3
3

On this appeal plaintiff contends that the due process clause of the fourteenth
amendment imposes on Massachusetts the following procedural constraints
with regard to the handling of license applications: (1) to provide a statement of
reasons when license applications are rejected; (2) to publish whatever policies
and rules the Board of Appeal observes in conducting hearings on rejected
applications; and (3) to hold Board of Appeal hearings at various locations in
Massachusetts, and not merely in Boston.

In order to evaluate whether plaintiff's contentions state a cause of action under

Sec. 1983, we must focus our attention upon two separate and distinct
questions. First, does the claim involve a federally protected constitutional
right? Secondly, has the plaintiff alleged facts which indicate that defendants
have infringed upon that right?

The district court ruled that since the issuance of an operator's license is
discretionary with the state, a constitutionally guaranteed "right" was not
involved. By so holding, the court misconceived the issue. In his complaint,
plaintiff did not argue that he had a right to an operator's license, and we may
take it as settled that such a right, federal or state, does not exist. See, e. g.,
Perez v. Tynan, 307 F.Supp. 1235, 1238 (D.C.Conn.1969); United States v.
Carter, 275 F.Supp. 769, 770 (D.C. D.C.1967). However, the plaintiff did
assert that he had a constitutionally protected right to procedural due process in
the state application procedures whereby a determination of whether to issue
such a license will be made. With this assertion, we are in complete agreement.

Among other things, the due process clause of the fourteenth amendment
protects individuals from unreasonable and unjustifiable state deprivations of
personal liberty. Board of Regents v. Roth, 408 U.S. 564, 571-572, 92 S.Ct.
2701, 33 L.Ed.2d 548 (1972); Bates v. City of Little Rock, 361 U.S. 516, 80
S.Ct. 412, 4 L.Ed.2d 480 (1960). Although an exact description of what
constitutes protectible "liberty" has never been fully articulated, it has long been

held that such liberty encompasses much more than the simple right to be free
from unwarranted bodily restraint. Board of Regents v. Roth, supra; West Coast
Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); Meyer
v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Smith v. Texas,
233 U.S. 630, 34 S.Ct. 681, 58 L. Ed. 1129 (1914); Allgeyer v. Louisiana, 165
U.S. 589, 17 S.Ct. 427, 41 L.Ed. 832 (1897). In Wall v. King, 206 F.2d 878 (1st
Cir.), cert. denied, 346 U.S. 915, 74 S.Ct. 275, 98 L.Ed. 411 (1953), this court
was faced with the contention that the personal liberty provision of the due
process clause should be extended to cover the use of a motor vehicle. After
careful analysis, the court accepted this proposition, remarking:
7
"We
have no doubt that the freedom to make use of one's own property, here a motor
vehicle, as a means of getting about from place to place, whether in pursuit of
business or pleasure, is a 'liberty' which under the Fourteenth Amendment cannot be
denied or curtailed by a state without due process of law." 206 F.2d at 882.
8

See also Reese v. Kassab, 334 F.Supp. 744 (W.D.Pa.1971); Perez v. Tynan,
supra; cf. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971);
Brockway v. Tofany, 319 F.Supp. 811 (S.D.N.Y.1970). Although Wall
involved the application of procedural due process to license suspension
proceedings, we can see no legitimate basis to decline to apply its rationale to
the instant challenge directed against comparable license application
proceedings. Cf. Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964) (procedural
due process applicable to application for retail liquor license). The principles
are identical. If the use of a motor vehicle may properly be viewed as a
"liberty" protectible by due process, it makes no difference whether the
threatened state deprivation will result from the loss of an operator's license, or
from the failure to have one issued. We thus conclude that fourteenth
amendment due process will attach to state procedures regulating the
application and issuance of a motor vehicle operator's license. Consequently,
the claims asserted in the complaint must be said to involve a federally
protected right.

Even though federally protected rights are at issue, plaintiff must sufficiently
allege facts to indicate that a deprivation of those rights by defendants has
occurred. If not, the complaint would fail to state a claim under Sec. 1983. See
Wall v. King, supra. Normally we would begin any analysis of plaintiff's
asserted procedural due process deprivations by first identifying the particular
opposing private and governmental interests involved, and then weighing the
validity and relative importance of these interests against the backdrop of our
constitutional scheme. Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25
L.Ed.2d 287 (1970); Cafeteria & Restaurant Workers Union v. McElroy, 367

U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Hannah v. Larche, 363
U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). However, in this case, at
least with respect to plaintiff's first two contentions, our task is simplified by
the complete absence of any legitimate governmental interest.
10

Initially, plaintiff has contended that the failure of the Registrar to indicate
reasons for the denial of his license application constitutes a deprivation of due
process.4 Raper's strong interest in adequate notice of the specific reasons
behind the Registrar's decision is clear. It is elementary that due process within
administrative procedures requires the opportunity to be heard "at a meaningful
time and in a meaningful manner." Goldberg v. Kelly, supra, 397 U.S. at 267,
90 S.Ct. at 1020. Although plaintiff, by exercising his statutory right to appeal
an adverse decision of the Registrar, would have the opportunity to be heard by
the Board, we are at a loss to comprehend how such a hearing could be said to
be "meaningful" if prior thereto the plaintiff was unaware of the grounds for
the Registrar's decision. Maintaining even an adequate presentation before the
Board under these circumstances would seem a Herculean accomplishment.
Without a statement of reasons, an applicant would not know what, or for that
matter whether, to appeal. Reasons for governmental action affecting important
individual rights must be timely proffered in order to satisfy due process. See
Board of Regents v. Roth, supra (termination from state employment);
Goldberg v. Kelly, supra (termination of welfare benefits); Misurelli v. City of
Racine, 346 F.Supp. 43, 49 (E.D.Wis.1972) (denial of application for renewal
of liquor license); Clutchette v. Procunier, 328 F.Supp. 767, 782
(N.D.Cal.1971) (prison discipline). The government has not advanced any
appropriate interest that would be served by its refusal to detail reasons. The
function of the Board of Appeal is not to rubber-stamp the Registrar, but to
provide a sufficient forum for the correction of administrative mistakes. It
would therefore be in the state's interest to note the reasons for denial, so that
the Board hearing may more likely achieve its intended purpose. Moreover, by
compelling the Registrar to indicate a specific basis for his action, we minimize
the possibility of arbitrary or unreasoned administrative judgment. A statement
of reasons may thus serve as an important safeguard against unwarranted abuse
of the Registrar's statutory discretion in approving or disapproving license
applications.5

11

For many of the same reasons, plaintiff's second contention, regarding the
failure of the Board to publish existing policies and regulations,6 would
similarly seem to constitute an infringement of due process rights. In order that
the Board hearing may legitimately be said to be held "in a meaningful
manner," Goldberg v. Kelly, supra, it appears necessary to inform applicants of
any existing procedural requirements that must be complied with,7 as well as

those current substantive criteria which will govern Board decisions.

Additionally, there do not appear to be adequate countervailing governmental
interests in nonpublication, and any financial or other burden that publication
would impose upon the Board seems minimal.
12

Plaintiff's final claim appears to be that his due process rights were infringed by
the failure of the Board to hold hearings throughout Massachusetts. He cites no
direct support for this novel proposition, nor has this court found any. In our
opinion the Board hearings presently provided in Boston are adequate and
entirely consistent with procedural due process. As to this contention, the
complaint fails to state a cause of action.

13

The judgment of the district court is reversed, and the case is remanded for
proceedings not inconsistent with this opinion.

Of the Second Circuit sitting by designation

On appeal, defendants for the first time assert that since Raper had a substantial
criminal record, and at the time of this 1972 application was on parole in
Vermont and on probation in Massachusetts for separate offenses, the reason
for the most recent denial of his application was his criminal background.
Although this may have motivated the Registrar to conclude that issuance of a
license did not "appear advisable," the record does not reveal any evidence of
this

The named defendants were the Registrar of Motor Vehicles, the Attorney
General and the Commissioner of Insurance, or their nominees, as members of
the Board of Appeal. In addition, the Registrar was named in his official
capacity

Defendants urge alternatively, that the complaint should have been dismissed
for plaintiff's failure to exhaust available state administrative remedies. In the
first place, we think the available administrative procedures would not have
responded to plaintiff's demand for procedural due process. Moreover, a series
of recent Supreme Court decisions, Carter v. Stanton, 405 U.S. 669, 92 S.Ct.
1232, 31 L.Ed.2d 569 (1971) (per curiam); Wilwording v. Swenson, 404 U.S.
249, 92 S. Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam); Houghton v. Shafer,
392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968) (per curiam); Damico v.
California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967) (per curiam);
McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622
(1963), have led many lower federal courts to conclude that such a requirement

is no longer necessary in Sec. 1983 cases. See, e. g., Beale v. Blount, 461 F.2d
1133, 1139 n. 11 (5th Cir. 1972); Padilla v. Ackerman, 460 F.2d 477, 479 (9th
Cir. 1972); Gilliam v. City of Omaha, 459 F.2d 63, 63-64 (8th Cir. 1972) (per
curiam); Jones v. Metzger, 456 F.2d 854, 856 (6th Cir. 1972); Hayes v.
Secretary of Dept. of Public Safety, 455 F.2d 798, 800 (4th Cir. 1972); LeVier
v. Woodson, 443 F.2d 360, 361 (10th Cir. 1971); Musselman v. Spies, 343
F.Supp. 528, 533 (M.D.Pa.1972); Cook v. Edwards, 341 F.Supp. 307, 310
(D.N.H.1972)
We concede that several of our own recent opinions in the area of school
administration, read broadly, would seem out of step with these authorities.
Beattie v. Roberts, 436 F. 2d 747, 748-749 (1st Cir. 1971); Drown v.
Portsmouth School Dist., 435 F.2d 1182, 1186 n. 10 (1st Cir. 1970), cert.
denied, 402 U.S. 972, 91 S.Ct. 1659, 29 L.Ed.2d 137 (1971); Dunham v.
Crosby, 435 F.2d 1177, 1180 n. 2 (1st Cir. 1970). To the extent that they
indicate a general or automatic requirement of administrative exhaustion in Sec.
1983 cases, we note our disapproval and signal our acceptance of the earlier
cited line of cases. But we adhere to our view of the necessity for ripeness to
the extent that there must be at least some definitive administrative or
institutional determination before a Sec. 1983 action may arise. We subscribe to
the view expressed in Stevenson v. Board of Education, 426 F.2d 1154, 1157
(5th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970), that
we should not "intervene in school personnel and management problems
without requiring such prior reference to local institutional authority as may be
necessary to assure that the action complained of is final within the institution
in the sense that it is ripe for adjudication."
4

We note that plaintiff does not allege that due process requires a full hearing
before the Registrar prior to denial of a license application. To require such a
hearing would place an inordinate burden on the Registrar's limited facilities,
and would seem unnecessary in view of the statutory mechanism for immediate
appellate hearing before the Board. Nor does plaintiff seek to challenge the
adequacy of the statutory standards whereby the Registrar is authorized to deny
a license application merely if the applicant is not deemed a "proper person."
Mass.Gen.Laws Ann. ch. 90, Sec. 8 (1969). Cf. Jodbor Cinema Ltd. v. Sedita,
309 F.Supp. 868 (W.D.N.Y.1970)

It also appears that it would impose no real administrative burden on the

Registrar to include a statement of reasons in his notice of denial. Where the
government can achieve a result equally well by according due process as by
denying it, the former course of action must be followed. Palmigiano v. Baxter,
487 F.2d 1280 at 1287-1288 (1st Cir., 1973)

We are careful to note that plaintiff does not seek to compel the Board of
Appeal, as a matter of due process, to promulgate any particular appellate
standards or procedures. A much closer question would be presented by such a
contention. Plaintiff merely urges that the Board's failure to publish those
policies which have already been adopted constitutes a denial of due process

For example, Raper was completely unaware that Board policy required the
submission of certain permission letters before jurisdiction over the appeal
would be assumed. Failure to be adequately apprised of this requirement caused
him needless travel and expense