# Robertson v. Wegmann > Supreme Court of the United States · May 31, 1978 · 436 U.S. 584 URL: https://www.frixlaw.com/law-library/cases/9427229 ## Case - **Full name:** ROBERTSON v. WEGMANN, EXECUTOR, Et Al. - **Court:** Supreme Court of the United States - **Decided:** May 31, 1978 - **Citations:** 436 U.S. 584; 98 S. Ct. 1991; 56 L. Ed. 2d 554; 1978 U.S. LEXIS 31 - **Precedential status:** Published - **Opinion:** Dissent by Blackmun - **Judges:** Marshall, Burger, Stewart, Powell, Rehnquist, Stevens, Blackmun, Brennan, White - **Cited by:** 675 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Disagreed with by Miller v. Apartments & Homes of New Jersey, Inc., 646 F.2d 101 (1981). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9427229 ## How later opinions describe it (automated extraction) - holding that the survivability of a § 1983 claim instituted by a plaintiff prior to his death is to be determined based on the law of the forum state unless state law is inconsistent with federal policy, but specifically indicating that it was expressing no view regarding whet… - explaining that state survivorship statutes may “vary widely” when it comes to “the parties as to whom survivorship is allowed,” but they all “modify” the “common law rule[]” that “[a]n injured party’s personal claim was always extinguished upon the death of either the injured… - holding that a federal civil rights action abated at death under Louisiana law and dismissing the Fifth Circuit’s creation of a federal common law rule for survival of remedial actions under federal law even though there was a "marked tendency of the federal courts to allow ac… - explaining that “when execution of a 12 government's policy or custom, whether made by its lawmakers or by those whose edicts or acts 13 may fairly be said to represent official policy, inflicts the injury….” then the municipality is 14 responsible under § 1983. - holding that nothing in the broad sweep of § 1983, or its underlying policies of victim compensation and deterrence, indicates “that a state law causing abatement ... should invariably be ignored in favor of a rule of absolute survivorship” ## Opinion text Mr. Justice Blackmun, with whom Mr. Justice Brennan and Mr. Justice White join, dissenting. It is disturbing to see the Court, in this decision, although almost apologetically self-described as “a narrow one,” ante, at 594, cut back on what is acknowledged, ante, at 590, to be the “broad sweep” of 42 U. S. C. § 1983 . Accordingly, I dissent. I do not read the emphasis of § 1988, as the Court does, ante, at 585 and 593-594, n. 11, to the effect that the Federal District Court “was required to adopt” the Louisiana statute, and was free to look to federal common law only as a secondary matter. It seems to me that this places the cart before the horse. Section 1988 requires the utilization of federal law (“shall be exercised and enforced in conformity with the laws of the United States”). It authorizes resort to the state statute only if the federal laws “are not adapted to the object” of “protection of all persons in the United States in their civil rights, and for their vindication” or are “deficient in the provisions necessary to furnish suitable remedies and punish offenses against law.” Even then, state statutes are an alternative source of law only if “not inconsistent with the Constitution and laws of the United States.” Surely, federal law is the rule and not the exception. Accepting this as the proper starting point, it necessarily follows, it seems to me, that the judgment of the Court of Appeals must be affirmed, not reversed. To be sure, survivor-ship of a civil rights action under § 1983 upon the death of either party is not specifically covered by the federal statute. But that does not mean that “the laws of the United States” are not “suitable” or are “not adapted to the object” or are “deficient in the provisions necessary.” The federal law and *596 the underlying federal policy stand bright and clear. And in the light of that brightness and of that clarity, I see no need to resort to the myriad of state rules governing the survival of state actions. First. In Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969), a case that concerned the availability of compensatory damages for a violation of § 1982, a remedial question, as here, not governed explicitly by any federal statute other than § 1988, Mr. Justice Douglas, writing for the Court, painted with a broad brush the scope of the federal court’s choice-of-law authority: “ [A] s we read § 1988, . . . both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. . . . The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired.” 396 U. S., at 240 (emphasis added). The Court’s present reading of § 1988 seems to me to be hyperlogical and sadly out of line with the precept set forth in that quoted material. The statute was intended to give courts flexibility to shape their procedures and remedies in accord with the underlying policies of the Civil Rights Acts, choosing whichever rule “better serves” those policies (emphasis added). I do not understand the Court to deny a federal court’s authority under § 1988 to reject state law when to apply it seriously undermines substantial federal concerns. But I do not accept the Court’s apparent conclusion that, absent such an extreme inconsistency, § 1988 restricts courts to state law on matters of procedure and remedy. That conclusion too often would interfere with the efficient redress of constitutional rights. Second. The Court’s reading of § 1988 cannot easily be squared with its treatment of the problems of immunity and damages under the Civil Rights Acts. Only this Term, in *597 Carey v. Piphus, 435 U. S. 247 (1978), the Court set a rule for the award of damages under § 1983 for deprivation of procedural due process by resort to “federal common law.” Though the case arose from Illinois, the Court did not feel compelled to inquire into Illinois’ statutory or decisional law-of damages, nor to test that law for possible “inconsistency” with the federal scheme, before embracing a federal common-law rule. Instead, the Court fashioned a federal damages rule, from common-law sources and its view of the type of injury, to govern such cases uniformly State to State. 435 U. S., at 257-259 , and n. 13. Similarly, in constructing immunities under § -1983, the Court has consistently relied on federal common-law rules. As Carey v. Piphus recognizes, id., at 258 n. 13, in attributing immunity to prosecutors, Imbler v. Pachtman, 424 U. S. 409, 417-419 (1976); to judges, Pierson v. Ray, 386 U. S. 547 , 55A-555 (1967); and to other officials, matters on which the language of § 1983 is silent, we have not felt bound by the tort immunities recognized in the particular forum State and, only after finding an “inconsistency” with federal standards, then considered a uniform federal rule. Instead, the immunities have been fashioned in light of historic common-law concerns and the policies of the Civil Rights Acts. 1 Third. A flexible reading of § 1988, permitting resort to a federal rule of survival because it “better serves” the policies of the Civil Rights Acts, would be consistent with the methodology employed in the other major choice-of-law provision in the federal structure, namely, the Rules of Decision Act. 28 *598 U. S. C. § 1652 . 2 That Act provides that state law is to govern a civil trial in a federal court “except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide.” The exception has not been interpreted in a crabbed or wooden fashion, but, instead, has been used to give expression to important federal interests. Thus, for example, the exception has been used to apply a federal common law of labor contracts in suits under § 301 (a) of the Labor Management Relations Act, 1947, 29 U. S. C. § 185 (a), Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957); to apply federal common law to transactions in commercial paper issued by the United States where the United States is a party, Clearfield Trust Co. v. United States, 318 U. S. 363 (1943); and to avoid application of governing state law to the reservation of mineral rights in a land acquisition agreement to which the United States was a party and that bore heavily upon a federal wildlife regulatory program, United States v. Little Lake Misere Land Co., 412 U. S. 580 (1973). See also Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696, 709 (1966): “[S]tate law is applied [under the Rules of Decision Act] only because it supplements and fulfills federal policy, and the ultimate question is what federal policy requires.” (White, J., dissenting.) Just as the Rules of Decision Act cases disregard state law where there is conflict with federal policy, even though no explicit conflict with the terms of a federal statute, so, too, state remedial and procedural law must be disregarded under § 1988 where that law fails to give adequate expression to important federal concerns. See Sullivan v. Little Hunting Park, Inc., supra. The opponents of the 1866 Act were distinctly aware that the legislation that became § 1988 would *599 give the federal courts power to shape federal common-law rules. See, for example, the protesting remarks of Congressman Kerr relative to § 3 of the 1866 Act (which contained the predecessor version of § 1988): “I might go on and in this manner illustrate the practical working of this extraordinary measure. . . . [T]he authors of this bill feared, very properly too, that the system of laws heretofore administered in the Federal courts might fail to supply any precedent to guide the courts in the enforcement of the strange provisions of this bill, and not to be thwarted by this difficulty, they confer upon the courts the power of judicial legislation, the power to make such other laws as they may think necessary. Such is the practical effect of the last clause of the third section [of § 1988] .... “That is to say, the Federal courts may, in such cases, make such rules and apply such law as they please, and call it common law” (emphasis in original). Cong. Globe, 39th Cong., 1st Sess., 1271 (1866). Fourth. Section 1983’s critical concerns are compensation of the victims of unconstitutional action, and deterrence of like misconduct in the future. Any crabbed rule of survivor-ship obviously interferes directly with the second critical interest and may well interfere with the first. The unsuitability of Louisiana’s law is shown by the very case at hand. It will happen not infrequently that a decedent’s only survivor or survivors are nonrelatives or collateral relatives who do not fit within the four named classes of Louisiana statutory survivors. Though the Court surmises, ante, at 591-592, that “surely few persons are not survived” by a spouse, children, parents, or siblings, any lawyer who has had experience in estate planning or in probating estates knows that that situation is frequently encountered. The Louisiana survivorship rule applies no matter how malicious or ill-intentioned a defendant’s action was. In this case, as *600 the Court acknowledges, ante, at 586 n. 2, the District Court found that defendant Garrison brought state perjury charges against plaintiff Shaw "in bad faith and for purposes of harassment,” 328 F. Supp. 390, 400 , a finding that the Court of Appeals affirmed as not clearly erroneous. 467 F. 2d 113, 122 . The federal interest in specific deterrence, when there was malicious intention to deprive a person of his constitutional rights, is particularly strong, as Carey v. Piphus intimates, 435 U. S., at 257 n. 11. Insuring a specific deterrent under federal law gains importance from the very premise of the Civil Rights Act that state tort policy often is inadequate to deter violations of the constitutional rights of disfavored groups. The Louisiana rule requiring abatement appears to apply even where the death was intentional and caused, say, by a beating delivered by a defendant. The Court does not deny this result, merely declaiming, ante, at 594, that in such a case it might reconsider the applicability of the Louisiana survivor-ship statute. But the Court does not explain how either certainty or federalism is served by such a variegated application of the Louisiana statute, nor how an abatement rule would be workable when made to depend on a fact of causation often requiring an entire trial to prove. It makes no sense to me to make even a passing reference, ante, at 592, to behavioral influence. The Court opines that no official aware of the intricacies of Louisiana survivorship law would “be influenced in his behavior by its provisions.” But the defendants in Shaw’s litigation obviously have been “sweating it out” through the several years of proceedings and litigation in this case. One can imagine the relief occasioned when the realization dawned that Shaw’s death might — just might — abate the action. To that extent, the deterrent against behavior such as that attributed to the defendants in this case surely has been lessened. As to compensation, it is no answer to intimate, as the Court *601 does, ante, at 591-592, that Shaw’s particular survivors were not personally injured, for obviously had Shaw been survived by parents or siblings, the cause of action would exist despite the absence in them of so deep and personal an affront, or any at all, as Shaw himself was alleged to have sustained. The Court propounds the unreasoned conclusion, ibid., that the “goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of the deceased’s estate.” But the Court does not purport to explain why it is consistent with the purposes of § 1983 to recognize a derivative or independent interest in a brother or parent, while denying similar interest to a nephew, grandparent, or legatee. Fifth. The Court regards the Louisiana system’s structuring of survivorship rights as not unreasonable. Ante, at 592. The observation, of course, is a gratuitous one, for as the Court immediately observes, id., at 592 n. 8, it does not resolve the issue that confronts us here. We are not concerned with the reasonableness of the Louisiana survivorship statute in allocating tort recoveries. We are concerned with its application in the face of a claim of civil rights guaranteed the decedent by federal law. Similarly, the Court’s observation that the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. §§ 908 (d), 909 (d) (1970 ed., Supp. V), and Federal Employers’ Liability Act, 45 U. S. C. § 59 , limit survival to specific named relatives or dependents (albeit a larger class of survivors than the Louisiana statute allows) is gratuitous. Those statutes have as their main purpose loss shifting and compensation, rather than deterrence of unconstitutional conduct. And, although the Court does not mention it, any reference to the survival rule provided in 42 U. S. C. § 1986 governing that statute’s principle of vicarious liability, would be off point. There it was the extraordinary character of the liability created by § 1986, of failing to prevent wrongful acts, that apparently induced Congress to limit recovery to *602 widows or next of kin in a specified amount of statutory damages. Cf. Cong. Globe, 42d Cong., 1st Sess., 749-752, 756-763 (1871); Moor v. County of Alameda, 411 U. S., at 710 n. 26. The Court acknowledges, ante, at 590, “the broad sweep of § 1983,” but seeks to justify the application of a rule of nonsur-vivorship here because it feels that Louisiana is comparatively generous as to survivorship anyway. This grudging allowance of what the Louisiana statute does not give, just because it gives in part, seems to me to grind adversely against the statute’s “broad sweep.” Would the Court’s decision be otherwise if actions for defamation and malicious prosecution in fact did not survive at all in Louisiana? The Court by omission admits, ante, at 591, and n. 6, that that question of survival has not been litigated in Louisiana. See Johnson, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La. L. Rev. 1 , 6 n. 23 (1976). Defamation and malicious prosecution actions wholly abate upon the death of the plaintiff in a large number of States, see ante, at 591, and n. 6. Does it make sense to apply a federal rule of survivorship in those States while preserving a different state rule, stingier than the federal rule, in Louisiana? Sixth. A federal rule of survivorship allows uniformity, and counsel immediately know the answer. Litigants identically aggrieved in their federal civil rights, residing in geographically adjacent States, will not have differing results due to the vagaries of state law. Litigants need not engage in uncertain characterization of a § 1983 action in terms of its nearest tort cousin, a questionable procedure to begin with, since the interests protected by tort law and constitutional law may be quite different. Nor will federal rights depend on the arcane intricacies of state survival law — which differs in Louisiana according to whether the right is “strictly personal,” La. Code Civ. Proc. Ann., Art. 428 (West 1960); whether the action concerns property damage, La. Civ. Code Ann., Art. 2315, ¶ 2 *603 (West 1971); or whether it concerns “other damages/’ id., ¶ 3. See 37 La. L. Rev., at 52. The policies favoring so-called “absolute” survivorship, viz., survivorship in favor of a decedent’s nonrelated legatees in the absence of familial legatees, are the simple goals of uniformity, deterrence, and perhaps compensation. A defendant who has violated someone’s constitutional rights has no legitimate interest in a windfall release upon the death of the victim. A plaintiff’s interest in certainty, in an equal remedy, and in deterrence supports such an absolute rule. I regard as unanswered the justifications advanced by the District Court and the Court of Appeals: uniformity of decisions and fulfillment of the great purposes of § 1983. 391 F. Supp., at 1359, 1363-1365; 545 F. 2d, at 983. Seventh. Rejecting Louisiana’s survivorship limitations does not mean that state procedure and state remedies will cease to serve as important sources of civil rights law. State law, for instance, may well be a suitable source of statutes of limitation, since that is a rule for which litigants prudently can plan. Rejecting Louisiana’s survivorship limitations means only that state rules are subject to some scrutiny for suitability. Here the deterrent purpose of § 1983 is disserved by Louisiana’s rule of abatement. It is unfortunate that the Court restricts the reach of § 1983 by today’s decision construing § 1988. Congress now must act again if the gap in remedy is to be filled. Moor v. County of Alameda, 411 U. S. 693 (1973), is not to the contrary. There, the Court held that § 1988 does not permit the importation from state law of a new cause of action. In passing dictum, 411 U. S., at 702 n. 14, the Court noted the approach taken to the survival problem by several lower federal courts. In those cases, because the applicable state statute permitted survival, the lower courts had little occasion to consider the need for a uniform federal rule. “The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9427229. Public record. Not legal advice.