Cady v. Arenac County

BOYCE F. MARTIN, JR., Circuit Judge,

concurring.

I concur in the majority opinion except with respect to Cady’s claim against county prosecutor Broughton in his official capacity.

The majority rejects Cady’s claim by sua sponte declaring it barred by the Eleventh Amendment. But unlike federal jurisdiction, which “can neither be waived nor assumed,” United States v. Gagnon, 553 F.3d 1021, 1023 (6th Cir.2009), Elev *346 enth Amendment immunity is waiveable, both expressly or because it has not been raised, see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 , 105 S.Ct. 3142 , 87 L.Ed.2d 171 (1985).

Yet today the majority confusingly (and incorrectly) implies both that appellate courts must raise Eleventh Amendment immunity on their own, and, alternatively, that we merely retain the authority to do so. Only the latter is correct: we may raise the question of sovereign immunity, see S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir.2008), but the question remains when we should, see, e.g., Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (Scalia, J.) (“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”). Notwithstanding some dicta- — see Nair v. Oakland County Cmty. Mental Health Auth., 443 F.3d 469, 474 (6th Cir.2006) (“[Sjovereign immunity ... may be asserted for the first time on appeal, and it may (and should) be raised by federal courts on their own initiative.”) — the cases the majority cites do not support its view that Eleventh Amendment sovereign immunity must be raised by federal courts whenever they detect the faintest whiff of its presence.

For example, in Nair , sovereign immunity was actually raised, albeit as an alternative defense; the Nair Court’s dicta came during its explanation of why it addressed the immunity defense rather than the merits. 443 F.3d at 474 . And in S & M Brands, Inc. v. Cooper, this Court addressed sovereign immunity but did so only after requesting additional briefing on the question, something the majority here had no interest in. Cf. S & M Brands, 527 F.3d at 507 (“We asked for and received from the parties supplemental briefs on the issue.”) (citing Nair, 443 F.3d at 474 ).

Moreover, at oral argument, counsel for Broughton and the county was asked whether he relied on Eleventh Amendment immunity. He carefully explained that he had considered that option and declined to raise that defense. This vigorous opposition of friendly questioning from the bench may not have been the wisest litigation maneuver, but it was honest and makes the majority’s desire to reach out and decide the question not merely the raising of an issue sua sponte, but instead the overriding of an explicit waiver, albeit one made at oral argument.

And there was a good reason for the county’s counsel not to rely on Eleventh Amendment immunity: it likely does not apply. I, like the majority, have of course not had the benefit of briefing on this question — so I, also like the majority, cannot claim perfection. But I disagree with the majority’s conclusion that county prosecutor Broughton acted as an arm of the state when he proposed the release-dismissal agreement. Eleventh Amendment immunity ought not apply.

The majority is correct that claims against individuals in their “official capacities” are in essence claims against the government itself. But counties and other municipalities are not states, so such officials only receive sovereign immunity when they “act as an arm of the state.” Brotherton v. Cleveland, 173 F.3d 552, 563 (6th Cir.1999). In holding that Broughton so acted, the majority exclusively relies on Pusey v. Youngstown, 11 F.3d 652, 657 (6th Cir.1993), and asserts that “the facts of this case are essentially the same as in Pusey.” Hardly. Pusey sued county prosecutor Maureen Cronin under § 1983, alleging that Cronin violated Pusey’s First Amendment rights by failing to notify her that Cronin would reduce the charges *347 against the killer of Pusey’s son at an upcoming hearing. We rejected her claim, reasoning that “Cronin acted on behalf of the state when she was prosecuting state criminal charges and reduced the charge.” Id. at 657. The majority thinks Pusey analogous because Broughton filed criminal charges against Cady, which was the execution of state criminal law.

But Cady does not challenge the prosecution of the criminal charge, or even release-dismissals abstractly. He instead challenges the content of the release-dismissal agreement here — i.e. the requirement that Cady not sue in civil court for six-months any of the other people involved. There is simply no analogue for that in Pusey . Indeed, whether that particular release-dismissal condition was permissible is governed by the standard this Court has articulated for distinguishing between situations where local officials merely carry out state policy (and therefore act as an arm of the state) or whether they act in their own, local, policymaking capacity (and therefore do not). As we have explained: “The essential question asks whether [the local official] could have chosen not to use his authority under the state statute and how he would use such authority; if he could have opted to act differently, or not to act, he did not act as an arm of [the state] when he formulated and implemented the contested policy.” Brotherton, 173 F.3d at 566 . By contrast, the Eleventh Amendment bars the claim if the official “rotely enforce[d]” state law or merely “complied] with state mandates that afford no discretion.” Id. 1

Here, it is evident that Broughton was not “rotely” “complying” with state law: he used his position as county prosecutor to make a policy choice to enter into a release-dismissal agreement and, more importantly, to include in that agreement a requirement that Cady not sue several others in civil court. The majority’s conclusion otherwise rests on two assumptions: first, the bald assertion that no “policy” is implicated, and, second, an attempt to restate the “essential question” differently than did Brotherton to assume a conclusion. The proper question here is whether, even assuming that release-dismissals generally are within a prosecutor’s mandated duties (not at all clear), the contents of that agreement also were within his mandated duties. It is hardly novel that an agent might have general authority to enter into an agreement of some kind but nevertheless can exceed his authority in the final agreement’s specific terms. In other words, a prosecutor acts on his own (or at least only on the county’s) behalf when he exceeds the authority expressly delegated to him by the state. This principle does not make his action unlawful, but it means that sovereign immunity, a defense afforded only to the state itself, does not extend to every action by every official of a local polity. See McCurdy v. Sheriff of Madison County, 128 F.3d 1144, 1146 *348 (7th Cir.1997) (“The added wrinkle here, however, is that by delaying the service of the arrest warrant for so long, the sheriffs office may have exceeded the scope of its delegated state authority, may have ceased, therefore, to be an arm of the state.... If that is what happened here, this suit would probably be against the deputy in his personal capacity; but it would be (also or instead) against the sheriff in his official capacity if the deputy had been acting pursuant to a policy of the sheriff.”); Monell v. Dep’t. of Social Services, 436 U.S. 658, 694 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978).

Instead, the majority makes the above assumptions based on its myopic view that we cannot look beyond the act of the release-dismissal agreement itself and into its contents. Release-dismissals are not like plea bargains: the justification for plea bargains focuses on the prosecutor’s duties with respect to his limited institutional role and his concern for often limited prosecutorial resources. Release-dismissals, by contrast, concern only whether the defendant may sue the officers who apprehended him for constitutional violations (arguably within the prosecutorial duties), or some extant third-parties in civil court (far attenuated from typical prosecutorial duties). Indeed, states generally disfavor release-dismissal agreements as a policy matter, see, e.g. The Legal Ethics of Release-Dismissal Agreements: Theory and Practice, 1 Stan. J. Civ. R. & Civ. L. 371 (2005), and, as far as I can tell, a release-dismissal that purports to dismiss the defendant’s civil claims against third-parties is a rarity — at oral argument the county’s lawyer told us that the prosecutor had never done this before and has not done it since. Thus, in my view, Cady’s suit against Broughton in his official capacity is not barred by the Eleventh Amendment. 2

Yet, again, neither I nor the majority had the benefit of any briefing on this question; the majority’s total certainty is thus not reassuring. And it is undoubtedly true that we are more likely to misstep when we decide questions without any briefing by counsel. It is more prudent to resist this powerful seduction to think ourselves equal to the great common law jurists and make pronouncements on every possible legal question, presented or not. Indeed, it would be prudent to abstain here, where the county has waived immunity and we do not have the benefit of any additional briefing.

I nevertheless concur in the judgment because I would hold the release-dismissal agreement here — though unwise and potentially unseemly — enforceable. This Court, in reliance on the Supreme Court’s opinion in Newton v. Rumery, 480 U.S. 386, 399 , 107 S.Ct. 1187 , 94 L.Ed.2d 405 (1987), has explained that a release-dismissal agreement is enforceable if it was (a) voluntarily made, (b) not the product of prosecutorial overreaching, and (c) in the public interest. Coughlen v. Coots, 5 F.3d 970, 973 (6th Cir.1993) (citing Rumery, 480 U.S. at 399 , 107 S.Ct. 1187 ) (O’Connor, J„ concurring in part and concurring in the judgment). Some of the cases have used “prosecutorial misconduct” instead of *349 “prosecutorial overreach,” but, while a showing of legally cognizable police “misconduct” would be sufficient, it is not necessary. The inquiry under Rumery and our cases is whether the agreement was voluntary and whether the agreement furthered the public interest. For example, Rumery’s own attorney drafted the release-dismissal agreement and counseled his client at length on its benefits and implications, and the prosecutor’s decision to seek a civil release was motivated largely by a desire to insulate Mary Deary, the key witness in a related aggravated sexual assault case, from the need to testify at Rumery’s criminal trial or in his civil suit.

This case lacks most of those compelling facts. Here, the prosecutor sought to insulate people involved in some sort of altercation from civil liability. Choosing to prosecute only Cady was well within the prosecutor’s discretion, but it seems a bit bizarre that he would seek to prevent Cady from filing a civil suit. Although prosecutors are entrusted with protecting the public, it is unusual for one to try to shape local civil enforcement. Indeed, prosecutors lack any special insight into whether such civil lawsuits might succeed, and the results in this case are a testament to that fact: Cady violated the release-dismissal agreement and sued some of the others involved, and at oral argument the counsel told us that Cady obtained a sizable settlement from them, while he was acquitted of all charges that the prosecutor brought against him related to this incident.

But, in my view, one aspect of the release-dismissal agreement brings it within the public interest: it had a time-limit of six-months. Had Cady waited six-months (well under the statute of limitations for the civil claims he brought), all sides agree that the release-dismissal would have been fulfilled and he both could have brought his civil claims and been successfully released from criminal charges against him. The attorney for the county asserted that this was simply to effect a “cooling off’ period, and I think that enough, barely, to save this agreement.

I concur.

. See, e.g., Ruehman v. Sheahan, 34 F.3d 525, 529 (7th Cir.1994) ("The Sheriff has not alerted us to authority that requires him to use any computer system — let alone this one — to track warrants. A county agency, under the president of the county board, specified the [system's] design of SPWA.... State law requires the Sheriff to arrest the right people but says nothing about how he should do it. Design and auditing decisions have been left entirely to him. He could junk SPWA tomorrow, or alter its every detail, without thwarting any state policy or law. Each sheriff in Illinois is free to take a unique approach. A suit against the Sheriff would not prevent the state from later taking over the task of tracking warrants through, say, a single computer in the Clerk's Office. SPWA allows the Sheriff to find warrants faster than if he had to check with the Clerk's Office in the first instance, but is not the product of a state directive. It follows that in designing and implementing SPWA the Sheriff is not acting as the State of Illinois.").

. Erikson v. Pawnee County Bd. Of County Comm’rs, 263 F.3d 1151, 1154 (10th Cir.2001) is completely inapposite: the quote the majority pulls from that case only supported the Tenth Circuit's conclusion that a defendant's due process rights were not violated when the prosecutor employed a private attorney to provide additional research; it was the prosecutor who fulfilled his normal duties. And indeed, a county prosecutor can choose who to offer immunity to, but that says nothing about whether, having done so, he is entitled to sovereign immunity. Although the plaintiff in Erilcson raised Eleventh Amendment immunity, the court did not address it.