issue is raised which is premised on an unsettled question of state law and which may be mooted or avoided by the resolution within state court of the state law issue. In light of my analysis of the due process claim, I conclude that there is no unclear question of state law involved because the requirement that there must be Council action in order to discharge plaintiff is clear on the face of the Charter.
The scope of the application of Younger equitable restraint to a civil action is not entirely clear as a result of the Court's decisions in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975) and its progeny. Trainor v. Hernandez, 431 U.S. 434, 444, 97 S. Ct. 1911, 1918, 52 L. Ed. 2d 486, 496 n.8 (1977); Juidice v. Vail, 430 U.S. 327, 336, 97 S. Ct. 1211, 1218, 51 L. Ed. 2d 376, 385 n.13 (1977). The Court noted in each of its decisions that it was not holding that the Younger doctrine should apply to all civil litigation. Rather it would appear that the Court has mandated Younger equitable restraint only in cases where the federal plaintiff is attempting to invalidate a state statute and thereby enjoin a pending state civil proceeding which was initiated by the state against the federal plaintiff and was intended to enforce or vindicate an important state policy. Trainor v. Hernandez, 431 U.S. at 443-44, 97 S. Ct. at 1917-18, 52 L. Ed. 2d at 495-96. In this case there is no pending state proceeding which has been initiated by the state and in which the constitutional issues raised here could be adjudicated. Therefore, I find the Younger doctrine inapplicable.
F. DENIAL OF DUE PROCESS
To resolve the constitutional question raised in this case it is not necessary to decide whether plaintiff's property interest or liberty interest has been adversely affected, as those terms are used in Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The Roth line of cases is concerned with due process rights which assure the fairness of a decision by government officials to deprive plaintiff of a property or liberty interest, i.e., whether notice and a hearing are necessary before the government action is taken. These particular procedures are required under this fairness doctrine of the Fourteenth Amendment only when a plaintiff has an interest of a kind which justifies that the affected party have an opportunity to challenge the merits of a governmental decision to terminate or otherwise affect his or her interest. However, such a challenge would be viable only in a situation where the government is constrained to meet some criterion or make certain specified findings in arriving at its decision. In summary, these cases are concerned with the denial of a particular class of procedures and involve only certain types of interests.
For example, in Roth, the Court held that in order to establish a property interest in public employment, plaintiffs must demonstrate that they have a non-unilateral expectancy of continuous employment pursuant to a statute, ordinance or implied contract and thus cannot be discharged without cause. The procedural protections of notice and hearing are required so that the tenured employee can challenge the reasons given for his or her dismissal. In contrast, a non-tenured employee has no substantive basis on which to object to the government's dismissal and therefore such procedural protections are superfluous.
However, there is a series of decisions which addresses an entirely different aspect of the Fourteenth Amendment due process clause. These cases are concerned with curtailing arbitrary and capricious action by governmental entities. In particular, they require that procedural regularity be complied with before governmental action is taken, i.e., that the government follow the procedures it has specified by its laws, regulations and customs. Consequently, it is now well established that the breach by the government of its own rules and regulations, in itself, can constitute a violation of the due process clause. Vitarelli v. Seaton, 359 U.S. 535, 539-40, 3 L. Ed. 2d 1012, 79 S. Ct. 968 (1959); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-69, 98 L. Ed. 681, 74 S. Ct. 499 (1954); United States v. Leahey, 434 F.2d 7, 11 (1st Cir. 1970); United States v. Heffner, 420 F.2d 809, 811-13 (4th Cir. 1969).
This arbitrariness doctrine applies more broadly than the fairness doctrine previously discussed. It is clear that the government will be held to comply with procedures which it has promulgated even if they are more generous than the Constitution would require. United States v. Heffner, 420 F.2d at 812. The doctrine is also not confined to safeguards which assure fair hearing procedures. United States v. Leahey, supra; Hupart v. Board of Higher Ed. of City of N. Y., 420 F. Supp. 1087, 1107 (S.D.N.Y. 1976).
However, not every violation of state procedures specified by law or regulation amounts to a denial of due process. Where procedures are established solely for administrative convenience or to promote some governmental goal independent of the protection of the individual whose interests are being affected, there is no constitutional guarantee. United States v. Leahey, 434 F.2d at 11. On the other hand, it is not necessary that the affected party demonstrate that the denial of the specified procedures will result in a deprivation of a property interest of a kind which would require a hearing, e.g., a tenured employment position. It is sufficient if plaintiff demonstrates that the government's failure to comply with its own procedures will have a pecuniary impact or result in a denial of a right or privilege which plaintiff otherwise would have. Courts have held that there was a denial of due process when a governmental entity failed to comply with regulations or procedures resulting in: (1) an interference in private non-tenured employment, Stokes v. Lecce, 384 F. Supp. 1039, 1048-49 (E.D. Pa. 1974); (2) removal from a school honor society, Warren v. National Ass'n of Secondary School Principals, 375 F. Supp. 1043, 1048 (N.D. Tex. 1974); (3) denial of priority in public housing, Otero v. New York City Housing Authority, 344 F. Supp. 737, 745 n. 13 (S.D.N.Y. 1972); (4) termination of a discretionary federal emergency loan program, Berends v. Butz, 357 F. Supp. 143, 151-53 (D. Minn. 1973); and (5) denial of admission to a municipal university, Hupart v. Bd. of Higher Ed. of City of N.Y., 420 F. Supp. at 1106-07.
Courts have recognized the application of this arbitrariness doctrine to cases involving non-tenured employment. In Prince v. Bridges, 537 F.2d 1269 (4th Cir. 1976), the court concluded that the plaintiff had a property interest in being discharged in accordance with the statutory procedures provided under state law even though the plaintiff was a non-tenured employee. Id. at 1272. This concept is implicit in the Supreme Court decision in Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976), in which the Court found that plaintiff had no property interest in employment in the Roth sense, i.e., tenured employment, but noted that the plaintiff had procedural rights according to state statutes which were not violated in that case. Id. at 347. I conclude that the criterion to follow in analyzing the due process claim in this case is similar to that stated by the Court in Service v. Dulles, 354 U.S. 363, 1 L. Ed. 2d 1403, 77 S. Ct. 1152 (1957), where the Court noted in a decision reversing the removal of a civil servant:
"While it is of course true that under the McCarran Rider, the Secretary was not obligated to impose upon himself these more rigorous substantive and procedural standards, neither was he prohibited from doing so, as we have already held, and having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them." Id. at 388.