Robert A. Wise v. Richard Anthony Bravo, the City of Pueblo, and Pueblo Police Department , 666 F.2d 1328 ( 1982 )

SEYMOUR, Circuit Judge,

concurring.

Although I concur in the result in this case, I write separately because the majority opinion fails to clearly articulate the interrelationship of constitutional and state law in the area of family relations.

The right to a relationship with one’s child is not created either by the Constitution or by state statute. I believe it is one of. those fundamental, inherent rights of every individual that predates both the federal Constitution and the state laws. Like the right to marry and have children and the right to live where one wants and pursue a livelihood by any lawful means, this right constitutes a “liberty” interest. As such it is protected by the due process clause of the Constitution. See generally Annot., “Supreme Court’s Views as to Concept of ‘Liberty’ Under Due Process Clauses of Fifth and Fourteenth Amendments,” 47 L.Ed.2d 975 (1977).

The Ninth Amendment acknowledged the prior existence of fundamental rights when it said: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S.Const. amend. IX. In a long line of decisions, the Supreme Court has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental “liberty” interests protected by the Constitution. Thus, the decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), was recently described by the Supreme Court as founded on the “constitutional underpinning of ... a recognition that the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life.” Harris v. McRae, 448 U.S. 297, 312, and n.18, 100 S.Ct. 2671, 2686, 65 L.Ed.2d 784 (1980),

In Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), the Supreme Court struck down a state law because it interfered with the constitutional right to marry.

“These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888).... Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

Id. at 12, 87 S.Ct. at 1823.

Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), are all cases in which state regulation was struck down by the Court because it unreasonably interfered “with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Pierce, 268 U.S. at 534-35, 45 S.Ct. at 573.

In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Court refused to apply a state statute which deprived unwed fathers of the custody of their children. The Court found that the right of a parent to conceive and raise his children, to care for and nurture them, is a fundamental right. The Court stated that “[t]he private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.” Id. at 651, 92 S.Ct. at 1212. The Court then applied strict judicial scrutiny and found that although the state did have a legitimate end, the statute used to achieve that end was constitutionally indefensible because the state law was not the narrowest, least restrictive means available to ensure the welfare of the children.

And in a unanimous decision in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), the Court said:

“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 1541-42, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, supra; Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 626-27, 67 L.Ed. 1042, 29 A.L.R. 1446 (1923). ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). And it is now firmly established that ‘freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’ Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52, 67 Ohio Ops.2d 126 (1974).”

Id. at 255, 98 S.Ct. at 554 (emphasis added).

That is not to say that the regulation of marriage and other family matters is not peculiarly within the province of the states. As the Court said in Loving v. Virginia, 388 U.S. at 7, “marriage is a social relation subject to the State’s police power.” But the Court has also made clear that state regulation may not impinge upon the constitutionally protected right to marry, or determine matters of procreation, contraception, abortion, and the right to maintain a parent-child relationship unless the state can show an overriding, compelling state interest and the use of the narrowest, least restrictive means to effect that end. The state must also provide procedural due process.

Viewed in this context, the majority’s statement that “there is no substantive federal constitutional ... law governing family relationships” is misleading. Slip op. at 6 (emphasis added). The Constitution does “govern” such rights in the sense that it is the ultimate “protector” of them. It is also confusing to say that “[t]he substantive aspect of the subject of family law and domestic relations is one uniquely within the province of the respective states.” Id. It is more accurate to say that the regulation of the subject is uniquely within the province of the states.

The majority’s statement that section 1983 “should not be viewed as a vehicle to resolve a dispute involving visitation rights,” at 1333, is accurate as applied to cases where the dispute is between parents or other relatives of the child. See, e.g., Crouch v. Crouch, 566 F.2d 486 (5th Cir. 1978). When the state is merely regulating the custody and visitation rights as between parents under the normal state judicial procedures governing divorce and custody, no constitutional question arises because the state has a compelling interest in the child and due process is provided. However, when an official of the state interferes with the parent-child relationship in some egregious manner outside the state judicial system, without procedural or substantive due process, section 1983 may be invoked. Under those circumstances, the state remedies referred to by the majority opinion at 7 — 8 are irrelevant. “[I]f the actions of law enforcement officers result in a deprivation of a federally protected right, the existence of an adequate state remedy does not bar recovery under 42 U.S.C. Sec. 1983.” Clappier v. Flynn, 605 F.2d 519, 528 (10th Cir. 1979).

The majority cites with apparent approval the trial court’s statement that “[t]o the extent plaintiff is attempting to assert claims relating to interference with his visitation rights ... no federal or constitutional claim is alleged.” At 1332. If the majority’s holding in this case rests on the premise that an interference with visitation rights under color of state law can never rise to the level of a constitutional deprivation, I must respectfully disagree. The noncustodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under section 1983 to visitation, which is the exclusive means of effecting that right, is to negate the right completely.

The majority concludes that any deprivation of Wise’s visitation rights was so insubstantial in duration and effect that it failed to rise to a federal constitutional level. Because I agree that the alleged deprivation here was de minimus for constitutional purposes, I concur in the result.