Raymond Muzquiz v. City of San Antonio

TUTTLE, Circuit Judge, with whom WISDOM, GOLDBERG and MORGAN, Circuit Judges,

join (dissenting).

With deference I dissent. Apparently because of its concern with the “ever burgeoning area of relief sought under 42 U.S.C.A. § 1983” the court seems to me to have whittled down the clear statutory grant of civil rights litigation under color of state law to little more than ■an empty promise. This is so because it is hard to conceive of a situation where a person acts under color of state law without being involved in a governmental type body.

*502 It must be borne in mind that all we are doing is construing a statute. Section 1983 provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

The Supreme Court has held that a municipal corporation is not a “person” within the contemplation of this statute. Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507 , 93 S.Ct. 2222 , 37 L.Ed.2d 109 (1973). The Court has also held that a county is sufficiently like a municipality that it must also be accounted to be a non-person under this section. Moor v. County of Alameda, 411 U.S. 693 , 93 S.Ct. 1785 , 36 L.Ed.2d 596 (1973).

The Court has not held that a true “person” cannot be sued merely because by means of the suit the public fisc would be reached through the court’s equity powers. Such a holding, as in my judgment is the decision of the court here, flies in the face of a literal reading of the language: “Every person, who, under color of any statute shall be liable in [a] suit in equity, or other proceeding for redress.”

The error which, respectfully, I think the court has made here is that it treats § 1983 as a statute granting or creating some sort of immunity to a municipal corporation. It does nothing of the sort. It merely does not include a municipal corporation within the word “person.” The clearest evidence of the Supreme Court’s understanding of this basic fact is the treatment it gave to the case of Moor v. County of Alameda. There the Court held that a suit could not be maintained against Alameda County in California because the County was not a “person.” The Court did not stop there, however. It gave instead what might to some be considered a very liberal construction of the word “citizen” in the diversity jurisdiction clause 1 in order to permit the action against Alameda County to proceed on the theory that it was a citizen of the State of California.

In its use of the word “person” in § 1983 Congress did not intend for it to have an arcane or restricted meaning to be determined on the basis of the effect the created cause of action might have on the public moneys of a municipality. The majority writes a new definition which says a true live and breathing person who is a trustee of a fund created by a municipality is not a “person” because the Congressional policy is not to permit a suit to be maintained against the city itself.

This approach is even less understandable to me in light of a post-Kenosha case of the Supreme Court. In Bradley v. School Board, 416 U.S. 696 , 94 S.Ct. 2006 , 40 L.Ed.2d 476 (1974), the Court permitted a suit under § 1983 to require the payment of an attorney’s fee to be charged against the Board itself. I would suppose that no member of this Court would think this board of trustees of a pension fund would be less a “person” than the Board of Education of the City of Richmond. See Davis v. Bd. of School Commissioners of Mobile County, 526 F.2d 865 (5th Cir. 1976), in which a panel of this Court recognized the identical right for recovery of attorneys’ fees against a board of education.

Pretermitting entirely ’ the question whether the “Pension Fund Board of Trustees” would qualify as a person, • I have no doubt but that the members of *503 this Board, sued in their individual capacities and as trustees, are persons. See Burt v. Bd. of Trustees of Edgefield Co. School Dist., 521 F.2d 1201 , 1205 (4th Cir. 1975). This is so even though, by suing them, the plaintiff if successful might be able, through equity, to get at the funds they are administering. 2 Such was the case when the Supreme Court carved out the exception of the Eleventh Amendment (a much more significant result, since the Constitution was involved, rather than the construction of a statute) in Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908).

I would hold that the trial court had jurisdiction of this case under § 1983.

. “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000 . . . and is between—

(1) citizens of different States.”

28 U.S.C. § 1332 (a)(1).

. See Incarcerated Men of Allen Co. Jail v. Fair, 507 F.2d 281 (6th Cir. 1974), in which the court said:

“A federal court may, however, award equitable relief against local officials, even though it will have a severe impact on local governmental funds, without infringing the policies behind § 1983. See Brown v. Board of Education, 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955); Northcross v. Board of Education, 489 F.2d 19 (6th Cir. 1973).” (Emphasis in original) 507 F.2d 288 .

I see no valid distinction between the impact on local funds caused by jail reform suits, reinstatement and back pay suits, school desegregation suits and the impact on the pension fund that a restitutionary award here would cause.