actions, plaintiff claims, therefore violated his right to substantive due process guaranteed by the 14th Amendment. The substantive due process claim, although dependent as is the procedural claim upon the plaintiff's threshold establishment of a protected liberty or property interest, presents a completely distinct legal theory and one I believe is inapplicable to the present case.
To make out a substantive due process challenge, where fundamental rights are not at stake, the plaintiff must establish that the state's decision was not rationally related to the achievement of a legitimate state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955). The plaintiff here, therefore, must show more than that the procedure by which the state made its decision was faulty, or that a different result would have been reached had the proper procedure been followed. He must prove that the state's decision was tainted by some inherent irrationality -- that, even were these defendants entitled to review the merits of the Board's choice, and even were the facts simply as the defendants believed them to be, no rational person would have refused to approve plaintiff's contract on the basis of those facts. Plaintiff here cannot meet this heavy burden. The state has asserted an interest in the integrity of state government which is undoubtedly legitimate. (Defendant's Reply Brief in Support of Motion to Dismiss Complaint As to Defendant's Bartle and Waldman at 10-12). One simply cannot say that it would always be irrational for a state to deny a contract involving substantial sums of money and considerable financial responsibility to an ex-felon who failed to report the conviction on a state application form.
Similarly, the plaintiff's argument that the defendants discriminated against him as one of a class of ex-felons is not supported by the allegations in the pleadings. The Attorney General and the General Counsel made an individualized determination that plaintiff's past conviction for burglary disqualified him for the particular post he sought. Thus, Kindem v. City of Alameda, 502 F. Supp. 1108 (N.D. Cal. 1980), upon which plaintiff relies, is not in point here. In Kindem, a statutory presumption that all ex-felons were unqualified to hold municipal positions was held violative of substantive due process. In this case, as distinguished from Kindem, the individualized decision of state officials, in the absence of any statutory presumption against ex-felons as a class, cannot be held to violate plaintiff's substantive due process rights. His claim is accordingly dismissed. See Hunter v. Port Authority of Allegheny Cty., 277 Pa. Super. 4, 419 A.2d 631, 638 (1980) (Past convictions may be considered as a factor in employment decisions if an individualized determination is made.)
In dismissing this claim, I emphasize that nothing in my ruling precludes plaintiff from proving at trial that defendants Bartle and Waldman acted wrongfully in refusing to approve the contract. Moreover, if plaintiff prevails on his procedural due process claim at trial and proves that he would have been able to carry out and enjoy the benefits of his contracts with the Board but for the defendants' wrongful actions he will still be able to claim damages for the substantive deprivation of his contractual rights. Carey v. Piphus, 435 U.S. 247, 255, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978).
3. Irrebuttable Presumption (Count III)
In this Count, plaintiff alleges that the Attorney General and General Counsel created an irrebuttable presumption that as an ex-felon he was not qualified to be a consultant to the Board. This Count is virtually indistinguishable from the substantive due process Count, in that it depends upon the claim that the state has stigmatized all ex-felons as a class unworthy of being entrusted with sizeable government contracts. As noted above, Hixon was not denied the contract as one of a class, but as an individual. The case cited in plaintiff's brief in support of his claim is thus not on point. Gurmankin v. Costanzo, 556 F.2d 184 (3rd Cir. 1977) (irrebuttable presumption that all blind persons are incapable of teaching in the public school system is unconstitutional). Moreover, since the irrebuttable presumption claim will be tested by the same minimum rationality standard used for the substantive due process claims, the claim will fail for the reasons discussed above. Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975); Malmed v. Thornburgh, 621 F.2d 565 (3rd Cir. 1980). Count III of the complaint is accordingly dismissed.
An appropriate order will be entered.
AND NOW, this 27th day of July, 1982, it is hereby Ordered that:
(1) Defendants Heddinger and Durbin's motion for partial judgment on the pleadings is GRANTED in part. Judgment is hereby entered in favor of defendants Heddinger and Durbin and against plaintiff on Count IV of the complaint. The remainder of the complaint is DISMISSED without prejudice. Plaintiff is granted leave to file an amended complaint against these two defendants, in accordance with the attached Memorandum, within fifteen (15) days of the date of this Order.
(2) Defendants Bartle and Waldman's motion to dismiss the complaint as to them is GRANTED in part and DENIED in part. Counts II, III and IV of the complaint are dismissed with prejudice. Defendants' motion to dismiss Counts I and V-XI is DENIED.
AND IT IS SO ORDERED.