Henry J. Bennett, Jr. v. City of Slidell, Gerry Hinton, B.E. McDaniel Nunzio Giordano, and Patrick J. Berrigan

GARWOOD, Circuit Judge,

concurring:

I concur in Judge Reavley’s opinion. I merely add that in my view this case does not present, and I do not believe we reach, the question of whether there may be instances in which it would be inappropriate to impose on the city a purely vicarious responsibility under section 1983 for the wrong even of a truly policy-making official acting within the scope of the authority delegated him by the city’s governing body — for example, an instance of highly unusual action, of a type not reasonably foreseeable by the governing body, which it takes prompt steps to correct.

POLITZ, Circuit Judge, with whom GARZA, TATE, JOHNSON and WILLIAMS, Circuit Judges, join, dissenting:

“Difficult questions nevertheless remain for another day. There are substantial line-drawing problems in determining ‘when execution of a government’s policy or custom’ can be said to inflict constitutional injury such that ‘government as an entity is responsible under § 1983.’ ” Monell v. Department of Social Services, 436 U.S. 658, 713 , 98 S.Ct. 2018, 2047 , 56 L.Ed.2d 611, 649-50 (1978) (Powell, J., concurring). For us, today is one of those other days. We are keenly aware of the accuracy of Justice Powell’s prediction. There are substantial line-drawing problems, indeed.

I agree with much of that written by my brother Reavley, but I cannot agree with the majority’s holding that the actions of *771 city building inspector Dugas and city attorney Berrigan, within the context of the facts of this case, are not acts of those who “may fairly be said to represent official policy.” Monell, 436 U.S. at 694 , 98 S.Ct. at 2037 . By today’s opinion the majority permits municipalities effectively to immunize themselves from § 1983 damage liability for the unconstitutional actions of their appointed officials merely by articulating facially constitutional policies in the substantive areas in which the officials perform their delegated duties. I cannot agree with this unduly restrictive view of Monell .

The issue presented in this case, as I perceive it, is whether a municipality may be held accountable in damages under § 1983 for the unequal and, thus, unconstitutional enforcement of its facially valid ordinance by an appointed official to whom the city has delegated final authority for interpretation and enforcement. I see both factual and legal questions. The jury implicitly and the trial court expressly made factual findings upon which they predicated the City of Slidell’s liability. There need be no citation of authority for the statement that these factual findings are to be upheld on appeal unless shown to be clearly erroneous and without record support. I accept the facts and proceed directly to the legal issue.

Monell teaches that under § 1983 a municipality must respond in damages for constitutional injuries resulting from the “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694 , 98 S.Ct. at 2037 .

The majority opinion giveth but immediately taketh away. Although it acknowledges that official policy can be made by a city official pursuant to delegated authority, it relieves the city of § 1983 liability whenever the city’s official substantive policy, as set forth in a written ordinance or as formally adopted by the city’s lawmakers, is facially constitutional. In essence, the majority holds that any action by an appointed official that is inconsistent with the city’s written ordinance is an aberrant act attributable only to that official and, therefore, that such action can never constitute official city policy within the meaning of Mo-nell. This restrictive interpretation of Mo-nell effectively negates the possibility that municipal liability will ever be imposed for the unconstitutional actions of an appointed official. Indeed, under the contours defined by the majority, the instances in which any edict or act of any person not a “lawmaker” may “fairly be said to represent official policy” will seldom arise. That result is totally at odds with Monell’s mandate that municipalities be subjected to § 1983 liability for more than the mere written words of their ordinances. As Justice Frankfurter recognized in Nashville C. & St. L.R. Co. v. Browning, 310 U.S. 362, 369 , 60 S.Ct. 968, 972 , 84 L.Ed. 1254 (1940), quoted in Monell, 436 U.S. at 691 n. 56, 98 S.Ct. at 2036 n. 56:

It would be a narrow conception of jurisprudence to confine the notion of “laws” to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice .. . can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy ... are often tougher and truer law than the dead words of the written text.

I read Monell to extend substantially farther than the execution of a formally adopted or announced policy that is unconstitutional on its face. Indeed, it must do so if Monell’s prescription of municipal liability is to have any meaningful application whatsoever.

Under the majority’s formulation, a city is only responsible for the unconstitutional enforcement of a facially constitutional ordinance when it is established that the aberrant conduct was so notorious that it can only be assumed that the city lawmakers tacitly approved the wrongful act. That proposition emasculates Monell . Corporate bodies, such as municipalities, act only through natural persons. It is through the *772 actions of such persons that laws are promulgated and policies are formally articulated. And it is only through the actions of such persons that official power and authority may be exercised and official policies and customs may be enforced. The rule of Monell must be interpreted to encompass the execution of governmental policy or custom, whether de jure, made by the lawmakers, or de facto, the acts of those clothed with the city’s power and authority in a given situation. The first category poses little difficulty; one need only look to see if the city has formally ordained an unconstitutional policy. One rationally expects to find little in this search. It is the second category that is problematic, however, and it is into that foggy swampland that the present case calls us.

Bill Dugas, usually referred to as the city building inspector, was chief of the Office of Permits and Inspections. He was appointed by elected city officials and was delegated specific enforcement authority by the Zoning Ordinance of the City of Slidell. 1 Section 3.201 of that ordinance creates Du-gas’ position and delegates his authority:

For the purpose of administering and enforcing this ordinance there is hereby created an Office of Permits and Inspections. The chief of this office, who shall be appointed by the president of the City Council with the approval of the Council, shall be charged with the responsibility of administering and enforcing the provisions of this ordinance.

Section 3.302 delegates to the building inspector the power to enforce the zoning ordinance through the granting or denying of occupancy permits.

It shall be unlawful to install permanent utilities in or to use or occupy or permit the use or occupancy of any part of any building or premises hereafter erected, created, changed, converted, or wholly or partly altered or enlarged in its use or structure until a certificate of occupancy shall have been issued therefor by the administrative official stating that the proposed use of this building or land conforms to the requirements of this ordinance.

One of the substantive provisions that Dugas was empowered to enforce relates to the surfacing of off-street parking facilities for businesses. Section 4.1 of the zoning ordinance requires that such parking lots “be surfaced with a minimum of four (4) inches of concrete or similar all-weather surface.” Bennett asserts that when he first spoke to Dugas about remodeling the premises for the lounge he requested and was given permission to surface the adjacent lot with shells. Dugas denies having given this verbal authorization but concedes that he allowed several other business establishments in Slidell to surface their parking lots with shells. The cost of a layer of shells is markedly less than the cost of four inches of concrete.

I view the evidence as did the trial judge and jury. Dugas declined to authorize Bennett’s use of a shell surface because of the intervention of John Coerver. Coerver, who was the City Auditor and an influential man in Slidell, lived near Bennett’s lounge. He warned Bennett of his influence with city authorities and of his intention to use that influence to prevent Bennett from opening the lounge. Coerver did not speak idly. He made known to Dugas his objection to the lounge. As a direct result, Dugas refused to issue an occupancy permit until Bennett incurred the additional expense of laying four inches of concrete over the parking area. Action on Bennett’s application for a liquor license was shelved because Bennett did not have an occupancy permit. In the meantime, Dugas and the city attorney “officially” acted to give the local utility company “authority to disconnect electric power” at the lounge. See panel opinion, 697 F.2d at 659.

Although the zoning ordinance provides for administrative review of Dugas’ interpretation and enforcement of the ordinance, 2 the record reflects that Dugas’ deci *773 sions to grant or deny occupancy permits were never challenged. Dugas’ decisions were final. His actions were the alpha and omega of the interpretation and execution of the city’s official policy in this area.

The majority shields the city from § 1983 liability for Dugas’ unconstitutional enforcement of the zoning ordinance on the ground that elected city officials did not authorize Dugas to make official city policy. I cannot concur in the broad sweep of that reasoning. Dugas could and did speak for the city on a matter of city policy. By formal action of the city council he was designated the primary authority to interpret and enforce the zoning ordinance. In fact, under the ordinance Dugas was the sole repository of city authority to grant or deny occupancy permits. Indeed, this delegation to Dugas was a major part of the city’s zoning policy. Dugas’ interpretation and enforcement of the ordinance therefore constituted the execution of official city policy. His actions were final and binding. The ordinance provided for an appeal to the Board of Adjustment and thereafter to the courts, but the anecdotal evidence reflects that no such appeal was ever taken. Du-gas’ unequal enforcement of § 4.1 fits perfectly within Monell’s prescription for § 1983 municipal liability where the “execution of a government’s policy ... by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell, 436 U.S. at 694 , 98 S.Ct. at 2037 .

The majority cites this court’s decisions in Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir.1980) and Bowen v. Watkins, 669 F.2d 979 (5th Cir.1982). I find both cases supportive of the conclusion that the City of Slidell is liable for Dugas’ unconstitutional acts. For example, Judge Wisdom wrote in Bowen :

When an official has final authority in a matter involving the selection of goals or of means of achieving goals, his choices represent governmental policy.... If a higher official has the power to overrule a decision but as a practical matter never does so, the decisionmaker may represent the effective final authority on the question.

Id. at 989 . See also Schnapper, Civil Rights Litigation After Monell, 79 Colum.L.Rev. 213, 218 (1979).

Notwithstanding the constitutionally neutral language of the zoning ordinance, Du-gas’ duties were not merely ministerial, as the majority suggests. Rather, through the exercise of his unbridled authority to enforce the zoning ordinance as he saw fit, Dugas was empowered with de facto final authority to select goals and to devise the means of achieving those goals. Under Bowen , then, Dugas’ acts represented official governmental policy within the meaning of Monell .

An appointed city official may be the final authority with respect to a specific policy without being the ultimate authority. It is at this point that I differ most with the majority. In my view, if an official is delegated the authority to act on behalf of the city in situations requiring the exercise of discretion, and if the decisions made by that official within the scope of his authority end the matter unless and until something else is specifically initiated (such as a formal appeal of the official’s decision), then that official is one “whose edicts or acts may fairly be said to represent official policy” within the intendment of Monell . City policy may result from the exercise of either de jure or de facto final authority. The mere fact that the official’s acts are inconsistent with the city’s facially constitutional ordinance cannot and should not be sufficient to immunize the city from § 1983 liability under Monell .

Finally, today’s decision and the Supreme Court’s decision in Owen v. City of Independence, 445 U.S. 622 , 100 S.Ct. 1398 , 63 *774 L.Ed.2d 673 (1980) are the proverbial lion and lamb. Can they coexist? The Supreme Court held in Owen that a city may be held accountable under Monell for the unconstitutional acts of appointed officials even if the officials enjoy individual immunity from § 1983 liability. See Butz v. Econo-mou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978) and authorities cited therein. Under today’s ruling, as long as the language of the city’s written ordinance is consistent with constitutional norms, a victim of an unconstitutional application of that ordinance will have the Hobson’s choice of suing either an immune city or an immune and/or judgment-proof official: I do not believe that the Forty-second Congress raised such an impenetrable shield against a victim of a constitutional injury when it adopted section one of the 1871 Civil Rights Act with the intention of throwing open the doors of the federal courts to protect federally created rights from official state encroachment.

Today’s opinion sounds a muted death knell in this circuit for what I perceive to be the intended application of Monell . For that reason, I cannot join the majority and must respectfully dissent.

. Ordinance Number 795, City of Slidell, Louisiana, effective September 15, 1968.

. Section 3.2 of the Slidell zoning ordinance provides:

*773 It is the intent of this ordinance that all questions of interpretation and enforcement shall be first presented to the administrative official and that such questions shall be presented to the Board of Adjustment only on appeal from the decision of the administrative official and that recourse from the decision of the Board of Adjustment shall be to the courts as provided by law.