Petition — McDonald v. Illinois

Suprs a . 8.

2

1

E O

SEP.13 1977

MICHAEL RODAK, JR., CLERK

IN Tue

Supreme Court of the United States

Octoser Term, 1976

No. 77 390

WILBUR McDONALD,

Petitioner,

vs.

STATE OF ILLINOIS, CITY OF CHICAGO, COUNTY OF COOK,

EDWARD V. HANRAHAN, BERNARD M. CAREY, JOSEPH

WOODS, RICHARD ELROD, DEPARTMENT OF CORREC-

TIONS OF COOK COUNTY, DANIEL WEIL, JAMES ROCH-

FORD, JAMES CONLISK, and WILLIAM ARNOS and GER-

ALD SATERNOS,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

FREDERICK F. COHN

CAROLYN JAFFE

35 East Wacker Drive

Chicago, Illinois 60601

Attorneys for Petitioner

—— — ͤ ö

—

— — —

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

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TABLE OF CONTENTS

PAGE

Opinion Below . — ——. 2

S » 2

Questions Presented For Review. 2

Constitutional Provisions And Statutes Involved 3

Statement Of The Case 5

Statement Of Facts , . 6

Reasons For Granting The Writ:

1.

The imprisonment of an innocent man for a crime

he did not commit is a violation of due process which

must be compensated for by the State a for

such incarceration 6

2.

The suit was not barred by sovereign immunity.

Certiorari should be allowed to reconsider Edelman

v. Jordan, 415 U.S. 651 (1974), to the extent that that

decision be deemed to countenance the court’s hold-

ing that such defense barred the suit though raised

for the first time on appeal 9

3.

The Illinois statutory limitation on the amount that

an innocent person may recover for having been im-

prisoned for a crime he did not commit violates due

process of law and equal protection of the laws 10

Conclusion 12

1

Appendices:

A—Opinion of the United States Court of Appeals

e SN cipipillbwainian la

B—Judgment Order of the United States Court of

Appeals for the Seventh Cireui 15a

LIST OF AUTHORITIES CITED

Cases

Almeida-Sanchez v. United States, 413 U.S. 266 (1973) 7

Barbee v. Warden, 331 F.2d 842 (4 Cir. 1964) 8

Brady v. Maryland, 373 U.S. 83 (1963) -..............-.----------- 8

Edelman v. Jordan, 415 U.S. 651 (1973 9,10

Estelle v. Williams, 425 U.S. 501 (1976) -........................ 10

Francis v. Henderson, 425 U.S. 536 (1976) 10

Frank v. Maryland, 359 U.S. 360 (195997 7

Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123

CRIED, wcibsieincvcesthscathdioteriehditeiiatartetdellfbsieiseiationgioepeatengaicignnpeed 7

Klopfer v. North Carolina, 386 U.S. 213 (1967) -......... 8

Mapp v. Ohio, 367 U.S. 643 (19602 7

Miranda v. Arizona, 384 U.S. 436 (1966) 7

Rochin v. California, 342 U.S. 165 (1951092 7

United States v. Marion, 404 U.S. 307 (1971) -............... 8

United States v. Toscanino, 500 F.2d 267 (2 Cir. 1974)... 7

United States v. Wade, 388 U.S. 218 (19677 7

Wong Sun v. United States, 371 U.S. 471 (1963) 7

Constitutional Provisions and Statutes

Eleventh Amendment, United States Constitution 3

Fourteenth Amendment, United States Constitution — 3

Article 13, Sec. 4, Illinois Constitution of 1970 3, 9,10

Article 5, Sec. 12, Illinois Constitution of 1970... 11

Chap. 37, Sec. 439.8, Illinois Revised Statutes .. 3, 4, 5, 10, 11

— . —————ßjĩj —

In THE

Supreme Court of the United States

Octoper Term, 1976

No.

WILBUR McDONALD,

Petitioner,

VS.

STATE OF ILLINOIS, CITY OF CHICAGO, COUNTY OF COO

EDWARD V. HANRAHAN, BERNARD M. CAREY, —

WOODS, RICHARD ELROD, DEPARTMENT OF CORREC-

TIONS OF COOK COUNTY, DANIEL WEIL, JAMES ROCH.

FORD, JAMES CONLISK, and WILLIAM ARN

ALD SATERNOS, 3

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the judgment and order of the United States

Court of Appeals for the Seventh Circuit entered in this

cause.

pr

Opinion Below

The opinion of the United States Court of Appeals for

the Seventh Circuit is set forth as an Appendix.

Jurisdiction

The Court of Appeals’ opinion was decided June 15,

1977. No petition for rehearing was filed. This Petition

is filed within 90 days after entry of judgment. Jurisdic-

tion is invoked pursuant to 28 U.S.C. 1254(1), 2101(c),

and Rule 22.3 of the Rules of this Court.

Questions Presented For Review

1. Where an innocent person was convicted and im-

prisoned for a crime he did not commit, may he win

redress against the State in the federal courts for the

wrongs he suffered in violation of his federally

guaranteed constitutional rights?

2. May a State, the Constitution of which recently

changed the law so as to abolish sovereign immunity,

assert the defense of sovereign immunity for the first

time in the Court of Appeals, where such was not raised

below?

A. Is Edelman v. Jordan, 415 U.S. 651 (1974),

applicable?

B. If so, should that decision be reconsidered,

since a holding that the State has not waived a

defense not raised below amounts to denial of

——

equal protection of the laws when juxtaposed

with decisions strictly applying waiver doctrine

against defendants in criminal cases?

3. May a State consistent with federal constitutional

requirements, impose a liability ceiling on recovery for

wrongful imprisonment, while not imposing such ceiling

for aan against the State for other kinds of tortious

conduct!

Constitutional Provisions and Statutes Involved

The Eleventh Amendment to the United States Con-

stitution provides:

“The judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens

or Subjects of any Foreign State.”

The Fourteenth Amendment to the United States Con-

stitution provides, in pertinent part:

Ny State shall... deprive any person of...

liberty . . . without due process of law; nor deny to

any person within its jurisdiction the equal protec-

tion of the laws.”

Article 13, sec. 4 of the Illinois Constitution of 1970

provides:

“$4. Sovereign Immunity Abolished

Except as the General Assembly may provide by

law, sovereign immunity in this State is abolished.”

Chap. 37, sec. 439.8, Illinois Revised Statutes provides,

in pertinent part: ,

The court [of claims] shall have exclusive

jurisdiction to hear and determine the following

matters:

** *

——

(e) All elaims against the State for time unjustly

served in prisons of this State where the persons

imprisoned shall receive a pardon from the gover-

nor stating that such pardon is issued on the ground

of innocence of the crime for which they were im-

prisoned: provided, the court shall make no award

in excess of the following amounts: for imprison-

ment of 5 years or less, not more than $15,000; for

imprisonment of 14 years or less but over 5 years,

not more than $30,000; for imprisonment of over 14

years not more than $35,000; and provided further,

the court shall fix attorney’s fees not to exceed 25%

of the award granted.” |

(d) All claims against the State for damages in

cases sounding in tort, if a like cause of action

would lie against a private person or corporation in

a civil suit, and all like claims sounding in tort

against the Medical Center Commission, the Board

of Trustees of the University of Illinois, the Board

of Trustees of Southern Illinois University, the

Board of Regents of the Regency Universities

System or the Board of Governors of State Colleges

and Universities; provided, that an award for

in a case sounding in tort shall not exceed

the sum of $100,000 to or for the benefit of any

claimant. The defense that the State or the Medical

Center Commission or the Board of Trustees of the

University of Illinois, the Board of Trustees of

Southern Illinois University, the Board of Regents

of the Regency Universities Systems or the Board of

Governors of State Colleges and Universities is not

liable for the negligence of its officers, agents, and

employees in the course of their employment is not

A a to the hearing and determination of such

claims.”

—5 —

Statement Of The Case

This petition seeks review of an opinion of the Court of

Appeals for the Seventh Circuit affirming (in part) the

District Court’s dismissal of petitioner’s Complaint! pur-

suant to the Civil Rights Act, 42 U.S.C. 1983, and under

general federal question jurisdiction, 28 U.S.C. 1331. (As

to that portion of the opinion and judgment reversed and

remanded for further proceedings as to a single defen-

dant, see opinion, p. 14, review is not sought herein.)

Petitioner sued a number of individual defendants and

governmental agencies, asserting that he had been

wrongfully convicted of a crime (murder) of which he

was later proven innocent. Petitioner spent 3 years and

35 days wrongfully incarcerated for this offense of

which he was wholly innocent. He was eventually par-

doned by the Governor of Illinois on grounds of in-

nocence. While petitioner also has an action pending in

the Illinois Court of Claims for redress for such wrong-

ful incarceration, the applicable State statute limits

recovery in such cases to approximately $3,000 per year

in custody.”

| No. 75 C 2755 (R. 1) R.“ refers to the Record on Appeal.

case was disposed of below leadi its;

there is no Transcript of — 4. 28 andere

* The statute, Chap. 37, sec. 439.8, III. Rev. Stat., set ou

supra in pertinent provides, inter alia, that for wrong-

8 Ar 5 years or less, recovery shall be limited

—6—

Statement Of Facts

The pertinent facts necessary to resolution of the

questions herein presented are fully contained in the

Opinion (App.), and are not repeated here to avoid un-

necessary duplication.

Reasons For Granting The Writ

1.

The imprisonment of an innocent man for a crime

he did not commit is a violation of due process which

must be compensated for by the State responsible for

such incarceration. |

The Court of Appeals expressly declined to rule on the

merits of petitioner’s claim for redress, holding instead

that sovereign immunity barred suit against the State

(see Point 2, infra), (Op. p. 7). Because the Complaint

depends upon the compensability of the wrongs

petitioner suffered as a man innocent but imprisoned, a

brief resumé of the merits is necessary to place the

balance of this Petition in proper perspective.

The essence of petitioner’s right to recovery is that he

is an innocent man, wrongfully incarcerated. His in-

nocence is not even subject to question.

This circumstance, in and of itself, even absent

specific and/or identifiable wrongful conduct by govern-

ment officials, must constitute a cause of action. Due

8

process will not countenance such wrongful deprivation

of liberty, without adequate compensation.’

It is immaterial that at common law, an innocent man

had no right to proceed against a governmental body for

the “tort” of his factually wrongful incarceration. The

continual evolution of due process is the living essence of

our democracy. See Frank v. Maryland, 359 U.S. 360,

371 (1959); Rochin v. California, 342 U.S. 165, 169

(1951); Joint Anti-Fascist Committee v. McGrath, 341

U.S. 123, 162-63 (1951) (concurring opinion of Mr.

Justice Frankfurter).

Accordingly, this Court consistently has interpreted

the Constitution in a flexible manner. See, e.g., Rochin v.

California, supra; Miranda v. Arizona, 384 U.S. 436

(1966); Wong Sun v. United States, 371 U.S. 471 (1963);

United States v. Wade, 388 U.S. 218 (1967); Almeida-

Sanchez v. United States, 413 U.S. 266 (1973); Mapp v.

Cio, 367 U.S. 643 (1961). See also United States v.

Toscanino, 500 F.2d 267 (2 Cir. 1974).

In fashioning these new rights, the Court looks to the

fabric of our society, holding that what once was

tolerated no longer can satisfy due process.

Due process no longer can countenance depriving a

man of liberty and of his good name, preventing him

from holding employment, invading his right of privacy,

and numerous other “torts” necessarily involved with

lengthy incarceration—without adequate compensation

for such “torts’—no matter how fair or “due” is the

“process” that resulted in his incarceration.

Of course, for such a grievous wrong, no monetary com-

nsation is ever “adequate.” And here, of course, peptone

to live under the onus of a sentence of 100 to 150 years.

—§—

If a defendant is so harmed by a delay in prosecution

that due process is violated,‘ so too, is an innocent person

harmed by incarceration for over 3 years, and due

process is at least equally violated.

Admittedly, police, prosecutors, and jurors can and do

make mistakes. But mistakes are made, perhaps because

in our urban industrialized society, it seems that we can-

not afford to expend, in every case, sufficient funds for

the type of investigation which would render such mis-

carriage of justice well nigh impossible. But due process

cannot permit the innocent person wrongfully convicted

to pay the price for the rest of society. He must be ade-

quately compensated.

The legal proceeding which deprived plaintiff of his

liberty and subjected him to all the horrors which

naturally flow from 3 years incarceration, was cap-

tioned: ,

“People of the State of Illinois v. Wilbur McDonald.”

As the People arrested him, prosecuted him and in-

carcerated him, so must the People compensate him for

the harm they caused him. And they caused him harm

whether or not, individually, they were proceeding in a

proper manner, for the end result was most improper—

the incarceration of an innocent man.

At the very least, the court should have held a hearing

to determine how this unconscionable result could have

occurred. For where an innocent person is wrongfully

4 In United States v. Marion, 404 U.S. 307, 320 (1971), the

Court recognizes that a citizen can be harmed by the State’s

failure to prosecute or delay in prosecution even where such

does not demonstrably interfere with his defense. And in

Klopfer v. North Carolina, 386 U.S. 213 (1967), holding due

process could be violated by the effects (public scorn, depriva-

— of employment) of the pendency of an unprosecuted

charge.

5 Cf. Brady v. Maryland, 373 U.S. 83, 87 (1963); Barbee v.

Warden, 331 F.2d 842, 846 (4 Cir. 1964).

—9—

convicted, the doctrine of res ipsa loquitur necessarily

applies requiring the result that the totality of

governmental action caused the harm.

Genuine cases of wrongful imprisonment, as at bar,

are few and far between. But for the unfortunate, nay,

accursed man who finds himself in the prison cell meant

for another, once his innocence has been vindicated in

theory by his release, the government of our land must

recognize a right of constitutional recovery against the

State that put and kept him there. The evolving concept

of a living due process demands no less.

Certiorari should be allowed so that this Court may

speak to this compelling due process issue.

2.

The suit was not barred b immunity

cn altered te panens er Edelman v.

Jordan, 415 U.S. 651 (1974), to th

decision be 2 to 4 A phy

holding that such defense barred th

raised for the first time on appeal. W

Sovereign immunity, as recognized by the Eleventh

Amendment, was held to bar petitioner's complaint,

though raised by respondents for the first time on

appeal. (Op. p. 7) if

However, such bar no longer exists in Illinois by

virtue of the Illinois Constitution of 1970, Art. 13, sec. 4:

“Except as the General Assembly may provide by law,

sovereign immunity in this State is abolished.”

The official text of the proposed Constitution, along with

appropriate explanations, distributed to all Illinois voters,

included the 11 1 explanation of this section: This

reverses Article IV, Section 26 of the 1870 Constitution by

„ anyone to sue the State, as provided by law.

ere could hardly be a more definite statement abolishing

sovereign immunity.

— 0

Edelman v. Jordan, 415 U.S. 651 (1974), is not even

applicable, since it only applies to nonconsenting States.

Id. at 663. By virtue of the Illinois constitutional and

statutory scheme, the State has indeed consented to

submit itself to the very sort of claim presented in

petitioner’s complaint. See III. Const. of 1970, Art. 13,

sec. 4; Ill. Rev. Stat., Chap. 37, sec. 439.8.

But to the extent that Edelman v. Jordan, supra, may

be deemed applicable, certiorari should be allowed so

the court may reconsider its holding in the light of

intervening decisions and evolving due process concepts.

Respondents’ failure to raise the defense in the District

Court foreclosed petitioner from the opportunity to

challenge it at the earliest possible opportunity. Recent

decisions strictly imposing the waiver doctrine against

defendants in criminal cases’ raise serious questions of

due process and equal protection, if a State at the same

time is deemed able still to raise on appeal the sovereign

immunity defense not raised below.

The State must be held to the same waiver standards

as are criminal defendants; any other result violates due

process of law and equal protection of the laws.

3

The Illinois statutory limitation on the amount that

an innocent person may recover for having been

imprisoned for a crime he did not commit violates

— process of law and equal protection of the

aws.

The Illinois statute limiting liability in cases of

wrongful imprisonment, III. Rev. Stat. chap. 37, sec.

439.8 (set forth at pp. 3-4, supra), is unconstitutional

E. g., Estelle u. Williams, 425 U.S. 501 (1976); Francis v.

Baltes, 425 U.S. 536 (1976).

.

because it singles out recovery for this special type of

tort from all other recoveries against the State for torts

generally. Compare subsection (e), with subsection (d), of

the statute.

Since there is no rational basis whatsoever for such

distinction, the statutory scheme violates equal protec-

tion of the laws, guaranteed by the Fourteenth Amend-

ment.

The provision limiting recovery is further unconstitu-

tional because it is available only after one has obtained

a pardon. The executive authority to pardon is totally

discretionary; pursuant to the Illinois Constitution of

1970, Art. 5, Sec. 12, a governor does not have to pardon

a person, even where there is no dispute that he was

innocent. This limitation on the statutory right of

recovery violates both the concept of separation of

powers and due process, for the judicial remedy is made

dependent on executive action, and a remedy which can

be granted or denied on the whim of an official—without

any standards—violates due process.

The limitations imposed by Chap. 37, Sec. 439.8, III.

Rev. Stat., upon the right of recovery of an innocent

person convicted of a crime he did not commit, are

therefore unconstitutional and void.®

** *

Since these limitations are void, and sovereign im-

munity has been abolished in Illinois, see Point 2, supra,

an innocent person, wrongfully imprisoned—as was

petitioner herein—has a right to full recovery for

damages. Certiorari should therefore be allowed.

Neither the district court nor the Seventh Circuit reached

this issue.

==

Conclusion

For any or all of the foregoing reasons, certiorari

should be allowed to review the judgment of the Court of

Appeals for the Seventh Circuit.

Respectfully submitted,

FREDERICK F. COHN

CAROLYN JAFFE

35 East Wacker Drive

Chicago, Illinois 60601

Attorneys for Petitioner

—la—

APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

No. 76-1265

WILBUR MCDONALD,

Plaintiff-Appellant,

V.

STATE OF ILLINOIS, CITY OF CHICAGO, COUNTY OF COOK,

EDWARD V. HANRAHAN, BERNARD M. CAREY, JOSEPH

Woops, RICHARD ELROD, DEPARTMENT OF CORREC-

TIONS OF Cook COUNTY, DANIEL WEIL, JAMES

ROCHFORD, JAMES CONLISK, and WILLIAM ARNOS and

GERALD SATERNOS,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 75-C-2755—William J. Lynch, Judge.

ARGUED OCTOBER 22, 1976—DEcCIDED JUNE 15, 1977

Before CLARK, Associate Justice (Retired),* FAIRCHILD,

Chief Judge, and Hastines, Senior Circuit Judge.**

705 Honorable Tom C. Clark, Associate Justice (Retired)

upreme Court nited States, designation.

This — was ap by Mr. Justice Clark and delivered

to the Clerk for publication June 8, 1977 prior to his death.

Senior Circuit Judge John S. Hastings heard gay =

ment and participated in the conference of the court, but died

before this opinion was submitted to him for approval.

* *

FAIRCHILD, Chief Judge. Plaintiff, Wilbur McDonald,

brought this civil rights action pursuant to 42 U.S.C.

1 and the Fourteenth Amendment inst the

tate of Illinois, Cook County, the City of Chicago, the

Cook County De ent of Corrections and various

county and city officials. Jurisdiction was claimed under

28 U.S.C. § 1331 as well as § 1343. Plaintiff claims that

defendants arrested, convicted and sentenced him for a

crime he did not commit, and, therefore, deprived him

of his right to liberty, as well as other constitutional

rights. He seeks money 2 The distriet court

granted summary judgment as to certain defendants,

and as to those remaining, dismissed the complaint for

failure to state a claim upon which relief could be

ted. We reverse the dismissal of the case against

endant Daniel Weil. We affirm all other dismissals

and the grants of summary judgment.

I. The Facts Leading to why wo Sd Conviction for

Murder and His Subsequent Pardon

On J 11, 1970, Chicago police officers arrested

Wilbur McDonald and charged him with the murder of

Agnes Lehmann. Mrs. Lehmann’s body had been found

in a wooded area of Grant Park in downtown Chicago.

Earlier, plaintiff had been found, semiconscious, on

railroad tracks near Grant Park. Police had taken him

to a hospital where the arrest was subsequently made.

Plaintiff states that he happened to be in Grant Park

on the day of Mrs. Lehmanns murder because he was

seeking a cool from July heat. Originally, —

planned to go to the h, but claims he was robbed o

the way, a matter he reported to defendants William —

nos and Gerald Schwere. both Chicago police officers.

Instead, then, he entered Grant Park where he 4 to

Ir NT

is escape, which apparen im near or

th the wooded area where Mrs. Lehmann’s body

lay, plaintiff lost a shoe and his clothes somehow came

in —— with the victim’s blood. He collapsed at

railroad tracks near the park.

—3a—

On August 17, 1971, plaintiff was tried and convicted

of the murder of Agnes Lehmann in the Circuit Court of

Cook County. He was sentenced to 100-150 years im-

prisonment.

Close to two years — 45 in August, 1973, Lester

Harrison, who was arrested b police in connection with

a murder in Grant Park, confessed to the 1970 murder

of Agnes Lehmann. When “the State’s Attorney for *

County learned of Harrison’s confession, he

McDonald’s release from custody. McDonald was —

freed on August 15, 1973. He was granted a new trial in

which the state moved to nolle prosse. One year later, on

August 19, 1974, the Governor of Illinois granted Mc-

Donald a full pardon “based on innocence.

II. The Nature of Plaintiffs Claim

Plaintiff filed this suit on August 15, 1975.

Simul gry * was his action for

— tate of Illinois in the Illinois Court of

The thrust of plaintiff's complaint in both suits

is that the imprisonment of an innocent man for a crime

which he did not commit is a violation of due proces

which must be compensated for by the state which is

responsible for the incarceration.

Also al in the federal — pe — a on

the part of the various city and way ae

as defendants. Plaintiff claims that s

ing occurred while defendants were acting under coor

of state law, and since the result of the wro

the conviction and imprisonment of plaintiff 1

paint. Specifically, ——. ‘alle es (l thet hat.

plainti p eges (

arrested and I ut prabable

cause; (2) that his clothes were seized oad th —

scrapings taken without a warrant; (3) that

denied uate legal representation, in that 42

Daniel Weil, then Superintendent of the Cook Countv

Department of Corrections, prevented his counsel from

taking photographs of plaintiff shortly after his arrest,

which photographs would have tended to corroborate

plaintiff's testimony that he was beaten near the scene of

—4a—

the murder; (4) that he was deprived of his due process

right to access to exculpatory evidence by the 2— of

defendant police officers William Arnos and Gerald

Saternos to discuss facts they knew prior to their

testimony, and by their failure properly to report their

initial encounter with plaintiff; and (5) that members of

the Chi Police . — 45 and the State’s At-

torney’s Office of Cook nty failed fully to investigate

plaintiff's version of what had occurred.

III. The Adequacy of Plaintiff's Claim Against the State

of Illinois

The district court dismissed the case inst the State

of Illinois on the ground that plaintiff had failed to state

a claim for which relief could be granted. Plaintiff's

complaint all that by virtue of his imprisonment for

a crime he did not commit, the State of Illinois deprived

him of liberty in violation of the Fourteenth Amend-

ment. Plaintiff apparently now concedes that no

procedural flaws existed in his apprehension or convic-

tion. But he es that even absent such flaws, when

the system results in the imprisonment of an innocent

man, due process has been denied.' Accordingly, he

seeks damages.

We must first consider certain procedural obstacles to

2 rivate claim brought against this particular

en

t. Private actions for inst the

states have traditionally been X. federal

courts by the doctrine of sovereign immunity as inferred

from the Eleventh Amendment:

The judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens

or Subjects of any Foreign State.

While the Amendment by its terms does not bar suits

against a state by its own citizens, the Supreme Court

1 Plaintiffs counsel, at oral ment, conceded that he

could cite no case thus far decided which so interpreted due

process.

888

has consistently extended the 2 of sovereign

immunity to such suits. Edelman v. Jordan, 415 US.

651, 662-63 (1974) (and cases cited therein).

The federal courts can exercise jurisdiction, however,

in cases where the state waives its immunity. Cf.

Edelman v. Jordan, supra, at 663 (1974). Plaintiff cites

us to Article 13, Section 4 of the Illinois Constitution of

1970 as evidence of that state’s waiver of sovereign

immunity. We have considered the section and find that

while it does waive sovereign immunity, the waiver is

made subject to such limitations as the state legislature

may impose. Section 4 provides:

Except as one Sere’ Aare sty secede by Sawn

sovereign immunity in this State is abolished.

[Emphasis added.]

And indeed, the General Assembly of Illinois has

provided that in cases such as this, where damages are

sought for wrongful imprisonment, sovereign immunity

8 waived only as to suits brought in the Illinois Court of

aims:

The court [of claims] shall have exclusive jurisdic-

tion to hear and determine the following matters:

(c) All claims against the State for time unjustly

served in prisons of this State where the persons

imprisoned shall receive a pardon from the gover-

nor stating that such pardon is issued on the ground

of innocence of the crime for which they were

imprisoned.

Ill. Rev. Stat., Ch. 37, § 439.8. Moreover, the Assembly

has limited the amount of damages which can be

awarded in cases of wrongful imprisonment to $15,000

for wrongful imprisonment of five years or less, to

$30,000 for five to fourteen years, and to $35,000 for

more than fourteen years. III. Rev. Stat., Ch. 37, § 439.8.

_ Plaintiff nevertheless contends that sovereign immun-

ity does not bar him from pursuing this federal suit

because he claims that the monetary limitations on

—6a—

recovery imposed by section 439.8 are unconstitutional,

(1) because Art. 13, Sec. 4 of the Illinois Constitution

was not intended to allow the legislature to limit the

amount of potential state liability, and (2) because the

Equal Protection Clause of the Fourteenth Amendment

prohibits the states from drawing irrational distinctions

in the treatment of citizens. In the latter respect, plain-

tiff argues that it is irrational for the State of Illinois to

single out the tort of a risonment and tell

citizens who suffer such their recovery

nst the state is limited, while citizens who suffer

r forms of tortious injury at the hands of the state

are not subject to the same limitations.

In considering whether or not plaintiff's suit inst

the State of Illinois is barred by 4— 1 we

begin our . L does not

challenge the decision of General Assembly of

Illinois to limit the forum in which the state can be

sued. Indeed, we do not think ona ely successfully

challenge this limitation. It long been recognized

that states can limit their waiver of sovereign immunity

to actions brought in their own courts and, indeed, even

A. LA Tennessee

Missouri Bridge Commission, 359 U.S. 275 (1959). Thus,

we must conclude that even if we were somehow

empowered to render a decision on the constitutionality

of the Illinois law limiting the amount of recovery in

cases of imprisonment brought against the

state, we id still have no power to consider the

merits of plaintiffs substantive case or to award

— because the State of Illinois has in no way

conceded to us the power so to act. Section 439.8 is qui

8 in 1.1. in cases such as this to

Illinois Court of Claims. It is the Illinois Court of

Claims alone then that can consider the merits of

plaintiff's case. And so, we believe it must be the Court

of Claims that considers the constitutionality of any

attempt by the state legislature to limit the amounts it

can a in

Plaintiff further argues that defendant’s counsel’s

failure to raise a immunity in the district court

bars its invocation at the present stage of the proceed-

—74a—

ing. We do not agree. In Ford Motor Co. v. Dept. of

Treasury of Indiana, 323 U.S. 459 (1945), sovereign

immunity was not argued by the State of Indiana until

the suit was before the Supreme Court. Nevertheless,

the Court found:

This was in time . . The Eleventh Amendment

declares Fancy and sets forth an explicit limita-

tion on federal judicial power of such compelling

force that this rt will consider the issue arisi

under this Amendment in this case even —

urged for the first time in this

Id. at 467. The failure of state's counsel to raise a

sovereign immunity defense at the trial would be

significant only if the state had empow counsel to

waive its immunity. Cf. Ford Motor Co. v. Dept. of

Treasury of Indiana, supra, at 466-69. Plaintiff has not

cited any state law vesting in the Attorney General of

Illinois the power to waive that state’s sovereign

immunity, nor have we found any such law.

Accordingly, without expressing any view as to the

merits of plaintiff's claim, we affirm the dismissal of the

district court as to the State of Illinois because we

conclude that exercise of federal jurisdiction is barred

by the Eleventh Amendment.

IV. The Adequacy of Plaintiff's Claim Against Individ-

ual Defendants

Pursuant to 42 U.S.C. § 1983, plaintiff seeks damages

against a number of city and county officials for

deprivation of constitutional rights while acting r

color of state law. We find the law to be clear that for

plaintiff to state a cognizable claim, he must allege more

than mere negli on the of these defendants.

See Wood v. } 420 U. . 14

v. Coughlin, 545 F. 2d 565 (7th Cir. 1976); v.

Pate, 516 F. 2d 889, 891 n. 2 (7th Cir. 1975), cert. denied,

423 U.S. 877 (1975). Indeed, in the case of supervisory

officials, he must allege some egy involvement in

. — * — See Adams v. , 445 F.2d 105 (7th

ir. .

*

A. Defendants Hanrahan and Carey

We have considered plaintiff's complaint and do not

find it adequate to state a claim with respect to

defendants Edward Hanrahan and Bernard Carey,

past and present State’s Attorney for Cook County. At

most, plaintiff alleges that the State’s Attorney's office

failed adequately to investigate plaintiff's version of

what transpired on July 11, 1970. He does not allege

that this was intentional or reckless on defendant’s part.

Moreover, as defendants note, even if every part of

plaintiff's story of having been the victim of multiple

thefts had been checked out and found true, it was not

inconceivable that he could still have been involved in

the murder of Mrs. Lehmann. He was found near the

crime, certain personal effects, notably his shoe, were

found near the victim’s body, and the victim’s blood was

found on his clothing. In this light, there is no reason to

read an implied charge of recklessness into plaintiff's

complaint.

The duty of the prosecutor is to bring to trial those

individuals whom he reasonably believes are guilty of

the crime with which they are charged. So long as he

acts within the 1 . — of this duty, he is immune from

civil liability. See Cawley v. Warren, 216 F.2d 741 (7th

Cir. 1954). Nothing in plaintiff's complaint suggests that

— * * — eer abused * — * —

parted from this duty with respect to plaintiff, an

therefore, we conclude they are immune — liability

and we affirm the district court’s dismissal of the

complaint against them.

B. Defendants Arnos and Saternos

Similarly, we find the complaint inadequate to state a

claim as against defendants William Arnos and Gerald

Saternos, members of the Chicago police force. Plaintiff

all that Arnos and Saternos were remiss in faili

to file a report about the robbery of which plainti

informed them. Moreover, plaintiff complains that the

two policemen’s refusal to talk with plaintiff prior to

trial, when they were the only witnesses who could

corroborate his story about being robbed, was to deny

him exculpatory evidence.

*

As to the first allegation, without expressing any view

as to whether a police officer’s intentional and invidious

failure to file a robbery report could state a constitu-

— elaim, we bag — Be ——＋ a —

eging no more possible negligence on 0

the named defendants. Plaintiff never suggests 1 the

police officers intentionally failed to file a report or were

reckless in not so doing.

As to the second allegation, we find that no damage

has been alleged. Plaintiff may not have spoken with

defendants Arnos and Saternos prior to trial, but he did

know that these two officers were aware of his having

been robbed on July 11th. There is no allegation that

their trial testimony did anything but corroborate

plaintiffs own story. Accordingly, we must affirm the

dismissal as to these defendants.

C. Defendants Rochford and Conlisk

The district court granted summary judgment in

favor of defendants James Rochford and James Conlisk,

present and past Chiefs of Police of the City of Chicago.

As noted in the court’s memorandum opinion, plaintiff

has done no more than list these individuals as

defendants in the caption of his complaint. No facts

pertaining to them are alleged in body of the

complaint, certainly none my Boye = involvement

in the wrongdoing attributed to their subordinates, such

as is required to maintain a section 1983 claim. Adams

v. Pate, 445 F.2d 105 (7th Cir. 1971). In fact, defendants

Rochford and Conlisk have filed sworn affidavits

asserting that they had no personal involvement in the

activities which gave rise to plaintiffs claim. On appeal,

plaintiff has e no argument that the district court

erred in granting summary judgment. In this light, and

because we agree with the district court’s findings that

the papers filed in this case present no genuine issue as

to any material fact, we affirm the grant of summary

judgment as to these two defendants.

D. Defendants Elrod and Woods

Defendants Richard Elrod and Joseph Woods are the

past and present Sheriffs of Cook County. Here again,

though plaintiff lists these individuals as defendants in

the caption of his case, he makes no specific allegations

of wrongdoing on their part, or personal involvement in

the 2 of others, in the body of his complaint,

nor does he, on this appeal, argue error in the distriet

court's decision to dismiss. We agree with the distriet

court, that absent any such allegations, the complaint

must be dismissed as to these defendants.

E. Defendant Weil

As against defendant, Daniel Weil, former Superin-

tendent of the Cook County Department of Corrections,

plaintiff alleges that defendant's refusal to allow plain-

tiffs counsel to photograph plaintiff shortly after his

arrest, and thus to obtain evidence to corroborate his

own testimony that he had been beaten by unknown

assailants, deprived plaintiff of his constitutional 4

to the effective assistance of counsel in the making of his

defense. The district court found that Weil, as Superin-

tendent of the Cook County Department of Corrections,

was vested with the authority to promulgate such rules

and regulations as he deem — r for the administra-

tion of the institutions over which he exercised control,

and therefore, that the refusal to allow plaintiff's counsel

to photograph plaintiff was within his discretion and did

not — violation of a right cognizable under sec-

tion ’

We cannot agree. A defendant’s right to prepare the

best defense he can and to bring to the court’s attention

any evidence heipful to his case is constitutionall

protected. The Supreme Court in Brady v. Maryla

373 U.S. 83 (1963) recognized the right of a defendant to

have access to exculpatory evidence in the hands of the

prosecutor. We believe a defendant also has the right to

preserve possibly exculpatory evidence and that, to the

extent the government or its agents frustrate such

preservation, the defendant has a constitutional claim.

—lla—

In this case, it was important to the defense plaintiff

made at the Lehmann murder trial that he show he had

been beaten and twice robbed on the day he was

arrested for the crime. His own testimony to this effect

would have been corroborated had he been able to in-

troduce a photograph of himself taken shortly after his

arrest and showing the physical effect of the claimed

beating. Thus, for defendant Weil to deprive plaintiff of

the opportunity to obtain such a photograph, impaired

plaintiff's right to present his defense.

We recognize that there will be questions as to the ex-

tent of damages for which defendant Weil is responsible.

The essential problem is the extent to which the lack of

a photograph contributed to the guilty verdict and, thus,

to plaintiff's imprisonment. This matter is complicated

by the fact that, as both parties seem to agree, at some

point before trial McDonald’s counsel sought a court

order to allow him to photograph plaintiff, and this re-

— was denied. It might be that at that 2 defen-

ant Weil would no longer be responsible for plaintiff's

— 1 to obtain a photograph and therefore not be

liable for full damages. But we do not believe it ap-

propriate for us here to attempt to regulate the appor-

tionment of the responsibility for plaintiff's inability to

obtain a agers Some of himself. Neither do we foreclose

Weil from esta ae. if he can, a Wood v. Strickland,

420 U.S. 308 (1975) defense. We conclude only that in-

sofar as defendant Weil prevented plaintiff's counsel

from photographing his client, plaintiff has stated a

cause of action against him. Accordingly, we reverse the

district court’s dismissal of the action against Weil.

V. A of Plaintiff's Claims Against Governmen-

tal Entities

Plaintiff has no cause of action, created by 28 U.S.C.

— against the City of ym Cook County, or the

partment of Corrections of Cook County. This proposi-

tion rests on statutory construction, a municipality not

being a “person” as the word is used in that statute.

Monroe v. Pape, 365 U.S. 167 (1961), Accord Moor v.

County of Alameda, 411 U.S. 693 (1973); City of Kenosha

v. Bruno, 412 U.S. 507 (1973).

8

A cause of action (without benefit of 28 U.S.C. § 1983)

may be implied in favor of one who suffers injuries as a

result of a government agent’s violation of the Constitu-

tion. Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388 (1971). If the requisite jurisdictional amount is

we nee the cause of action may be prosecuted in a

ederal court. — v. Bd. of Jr. College Dist. No. 515,

523 F.2d 569, 577 (7th Cir. 1975).

In Hostrop, the governmental entity was sued, and

held liable, while a Wood v. Strickland, 420 U.S. 308

(1975) defense was sustianed as to the individual

members of the governing board. The governing board

of the entity had itself taken the action which deprived

plaintiff of a property right, without due process. Thus

the responsibility of the entity arose directly out of the

action of its governing board. It might well not be an

unreasonable extension of Hostrop to hold a similar

governmental entity liable for the deprivation of a con-

stitutional right perpetrated by an inferior employee

when his act was required by a policy adopted by the

governing board.

With respect to the City of Chicago, as already ex-

plained, there is no adequate allegation of a deprivation

of plaintiff's constitutionally protected * ak any

ent of the City. Although we have found a sufficient

claim stated against Weil, there is no 2 that any

licy of Cook en of the County Department of

orrections, if that deemed a separate entity) re-

rrr to refuse an opportunity to photograph

plaintiff.

It seems to us that Cook County (or the Department)

did not itself violate the Constitution, nor impair plain-

tiffs constitutionally protected rights. If liability is to be

imposed on it under federal law for injury caused by

Weil’s act, it would have to be on a theory that imposi-

tion of vicarious liability on a governmental entity is an

appropriate and necessary —— against con-

stitutionally improper acts of its agents.

2

We are not aware of any decision which holds a local

government entity liable in money damages for the con-

stitutional deprivations committed by its agents, in-

dependently of any official policy. 1 principle of

1 superior has not been applied under § 1983,

although it must be noted that the opportunity to apply

it to municipal bodies was foreclosed by the statutory in-

terpretation that such bodies were not subject to § 1983

liability. But see Note, Da 3 Remedies Against

egy * or Constitutional Violations, 89 Harv. L.

Rev. , 931-35 (1976).

It can be argued with some force that imposition of

liability on the governmental entity is desirable in order

to hay 7 pense a the Constitution by * =

employees. who manage a government en

know that individuals whose rights are violated by

agents and employees will receive com out of

the public treasury, those in charge will have an incen-

tive to provide supervision to keep constitutional

violations to a minimum. The exclusionary rule is a

somewhat comparable judicially apes — 1

When an officer who acts under color of state law ob-

tains evidence in violation of the Constitution, the state

and public, and not just the officer, must “atone” for the

wrongdoing by being denied the use of the evidence

against the person wro . E.g. Mapp v. Ohio, 367 U.S.

643 (1961); cf. Elkins v. United States, 364 U.S. 206, 217

(1960); Weeks v. United States, 232 U.S. 383 (1914).

Notwithstanding the argument just outlined,-however,

we consider that the implication of a federal judicial

remedy to the extent which would be necessary to im-

pose liability on Cook County here would be out of har-

mony with the doctrine built up under § 1983, a drastic

extension of the decided cases, and we are not persuaded

of the existence of a sufficient need.

—l4a—

VI. Conclusion

We reverse the dismissal as to defendant Daniel Weil

and remand for further proceedings. In all other

respects we affirm.

Costs on this are allowed to the State of Illinois

anrahan,

Richard Elrod, the Cook County Department

tions and Daniel Weil, all represented by the State’s At-

torney, such defendants are allowed two-thirds of their

costs on appeal, and plaintiff is allowed one-third of his

costs.

AFFIRMED IN PART;

REVERSED IN PART.

USCA 4216—Midwest Law Printing Co., Inc., Chicago—6-15-77—275

=

APPENDIX B

Opinion by Ju qe Fairchild

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

June 15 1 77

Before

Hon. TOM C. CLARK, Associate Justice (Retired)*

Hon. THOMAS £. FAIRCHILD, Chief Judge _

Hon. JOHN S. HASTINGS, Senior Circuit Judge**

WILBUR McDONALD,

Plaintiff-Appellant,

Appeal from the United

States District Court

No. 76-1265 vs. tor the Northern District

of Illinois, Eastern Divi-

sion.

STATE OF ILLINOIS, et al.,

De fendants-Appellees. No. 75-C-2755

WILLIAM J. LYNCH, Judge.

This cause came on to be heard on the transcript of the record

from the United States District Court for the Northern District of

Illinois, Eastern Division, and was argued by counsel.

On consideration whereof, it is ordered and adjudged by this

court that the judgment of said District Court in this cause

appealed from be, and the same is hereby, AFFIRMED IN PART and

REVERSED IN PART, in accordance with the opinion of this court

filed this date. Costs on this appeal are allotted in accordance

with the final paragraph of this opinion.

* The Honorable Tom C. Clark, Associate Justice (Retired) of the

Supreme Court of the United States, sat by designation. This

opinion was approved by Mr. Justice Clark and delivered to the Clerk

for publication June 8, 1977 prior to his death.

ee Senior Circuit Judge John S. Hastings heard oral argument and

participated in the conference of the court, but died before this

opinion was submitted to him for approval.

— 20m.084