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WMX Techs., Inc. v. Miller

ELR Citation: 30 ELR 20096
Nos. No. 97-55336, 197 F.3d 367/(9th Cir., 09/02/1999)

The court affirms the dismissal of a company's claim that the contents of a report prepared in connection with the company's permit application to develop a landfill site deprived it of its constitutionally protected rights. In order to evaluate the company's permit application, a county board directed the district attorney to conduct an investigation of the company and to render its findings in a report. The company filed a 42 U.S.C. §1983 claim against the district attorney, claiming that statements in the report were defamatory and deprived it of property and liberty without due process of law. Specifically, the company alleged that a section of the report entitled "Organized Crime Connections" was a conclusory statement that the company had ties to organized crime. The company also alleged that its First and Fourteenth Amendments' right to petition the government was violated.

The court first holds that the company's application for a major use permit is not equivalent to a petition to the government for redress of grievances under the First Amendment. The company's First Amendment claims, therefore, must fail. The court next holds that the lower court properly dismissed the company's claim that the report's damage to its business reputation constituted a deprivation of a protected property interest without due process of law. Reputation alone is not an interest protected by the U.S. Constitution. In addition, the report did not deprive the company of its goodwill or any state right or status. Arguably the report damaged the company's reputation and could affect its business relations with others and, thus, the goodwill of the business. This would present a classic case for a state court defamation action, but not an action under §1983. Last, the court rejects the company's claim that the district attorney, in conducting the investigation requested by the board and reporting its findings to the board, exercised a function closely akin to making an official and public adjudication of criminal culpability in violation of the company's due process rights to notice and an opportunity to be heard. The district attorney exercised an investigatory function, not an accusatory function, for the board.

Counsel for Plaintiffs
Robert H. Friebert
Friebert, Finerty & St. John
Two Plaza E.
330 E. Kilbourn Ave., Ste. 1250, Milwaukee WI 53202
(414) 271-0130

Counsel for Defendant
Morris G. Hill
County Counsel's Office
1600 Pacific Hwy., Rm. 355, San Diego CA 92101
(619) 531-4860

Before Browning, Schroeder, Brunetti, Noonan, Leavy, Trott, Fernandez, Rymer, Kleinfeld, and Thomas, JJ.