Respondents Brief — Tower v. Glover

Ba &

S petiiaedinal oie

No. S2-1988

IN THE

Supreme Court of the Gnited States

QCTOBER TERM. 1983

Bru Tow) i: Publhe Defender

of Douglas County, Oregon and

GARY Bapcock, Public Defender

)

of the State of Oregon,

Pe fitioners,

Re sponde yt.

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF FOR RESPONDENT

“RICHARD A. SLOTTEE

CRAIG K. EDWARDS

1018 Board of Trade Bldg.

510 5.W. Fourth Avenue

Portland, Oregon 97204

Telephone: (503) 222-6429

Counsel for tespondent

“Counsel of Record

‘PRESS OF BYRON S. ADAMS PRINTING. INC. W ASHINGTON, D.C. (202) 347-8203

~~

QUESTION PRESENTED

Whether a public defender who conspired with state

officials to deprive his client of fundamental constitutional

rights is absolutely immune from liability under 42

U.S.C. § 1983.

TABLE OF CONTENTS

OUT OOE RIND soi cise csc cess eck

rae Oe Tee Ce i...

CARY OU iv viva ss,

PNT nu bic os oe a eee

Glover Stated A Sufficient Claim For Relief Under

RE a ae ee eae

Congress Intended That § 1983 Be Liberally Con-

strued To Provide A Broad Federal Remedy For

The Deprivation Of Fundamental Constitutional

Rights. The Statute’s Remedial Purpose And Scope

Defy The Creation Of An Immunity Defense For

Re CD gc i woke css,

Common Law Principles Do Not Support A Judicial

Grant Of Immunity For Public Defenders .......

3

IT.

ITI.

A.

D.

Public defenders are functionally equivalent to

private defense counsel, so an immunity de-

Wee OS ee i.e

1. Defense attorneys do not have immunity

at common law except for defamatory re-

marks made at trial. Public defenders

should have the same limited immunity

WI BD PIR oo yh ven cccccs biscracss

Public defender immunity is improper because

defenders exercise a private fection. not a

CON PICIN, TUITION nan cn kc ke ccc incenccs

When a public defender conspires with a

government official to deprive his client of con-

stitutional rights, he acts outside the scope of

his professional duties. Immunity should not be

accorded to acts that are outside the scope of

a ee

Public defenders are not governmental officials

so they are not entitled to qualified immunity

IV. Public Defender Immunity Would Result In The

Deprivation Of Equal Protection Under Oregon Law

For Similarly Situated Indigent Criminal Defend-

ants

oeevevoeoecewoeeeeveseeveeveev eens eo eseeeveeevneeeeaeeene ees

6

ll

16

19

V. Publie Policy Considerations Mandate That Public

iii

Table of Contents Continued

Defenders Should Be Subject To § 1983 Liability .

A.

B.

C.

D.

Alternate state remedies do not adequately

redress the violation of fundamental con-

tiutramwnuiic, oc, tr ae re ee

Public defender liability under § 1983 will not

overburden the criminal justice system .....

Public defenders are not re uired to reallocate

resources in order to defend prisoner initiated

DP cvtamdbce co. coe ee aS a

The recruitment and retention of public defen-

ders will not suffer as a result of § 1983 liability

pane ci epiapl Ee Sen OL OS res ae

Page

iv

TABLE OF AUTHORITIES

CASES CITED: Page

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) .... 5

Argersinger v. Hamlin, 407 U.S. 23 (1972) .......... 27

Beard v. Udall, 648 F.2d 1264 (9th Cir. 1981) ........ 16

pee ¥. Drede, 216 U.S. GE (CIGD) ................. i)

pence ¥. Maver, Gre FOE) ................ 27

Boddie v. Connecticut, 401 U.S. 371 (1971) .......... 19

Branson v. Oregonian R.R. Co., 10 Or. 278 (1881) ... 11

mrant v. Finkel, 666 U.S. G07 (1080) ............... l4

Briscoe v. LaHue, __. U.S. —___, 108 S.Ct. 1108

FN Os a 7,15

Butz v. Economou, 438 U.S. 478 (1978) ........ 13, 17, 18

City of Newport v. Fact Concerts, Inc., 453 U.S. 246

MD oe kee ee 6, IS

Coleman v. Turpen, 697 F.2d 1341 (10th Cir. 1982) .. 16

enna ¥. Sparkes, 469 U.S. 24 (1980) ............... 6, 8

Dodson v. Polk County, 628 F.2d 1104 (1980), rev'd on

other grounds, Polk County v. Dodson, 454 U.S. 312

COE i cl 1s

Donigan v. Finn, 290 N.W. 2d (Mich. App.) (1980)... 11]

Fern v. Ackerman, 444 U.S. 193 (1979) .......... passin

Gravel v. United States, 408 U.S. 606 (1972) ......... 17

Gideon v. Wainwright, 372 U.S. 355 (1963) .......... 9

prammes ¥. Kerner, 404 U.S, 519 (1972) .............. 25

Hampton vy. City of Chicago, 484 F.2d 602 (7th Cir. 1973).

Ore, GONIOR, GIG U.S. 97 CI... ... cs... 16

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ......... 16, 18

Aill v. Lewis, 361 F. Supp. 813 (E.D. Ark. 1973) .... 11

Imbler v. Pachtman, 424 U.S. 409 (1976) ......... passim

Lindsey v. Normett, 405 U.S. 56 (1972) ............. 19

Louisiana v. Crolino, 393 F. Supp. 1362 (D. Nev. 1974) 11

Malone v. Sherman, 49 N.Y. Sup. Ct. 530 (1883) .... 0 11

Mancini v. Lester, 630 F.2d 990 (3d Cir. 1980) ....... 16

Table of Authorities Continued

Page

McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972) ..__. l4

McMann v. Richardson, 397 U.S. 759 (1970) ........ 20)

Minns v. Paul, 542 F.2d 899 (4th Cir. 1976). cert. denied,

somal (ects medica ki ert rh ne iy 4

Monell v. Department of Social Services, 436 U.S. 658

Og A ee OT a ae ei ae 8

monroe v. Pape, 06 U.S. 16711061) ..... passim

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ............ 18

O'Connor v. Donaldson, 422 U.S. 563 (1975) ......... 18

Owen v. City of Independence, Mo., 445 U.S. 622

Lome COT er a 6, 12

rereon v. Rey, 006 U.S: G47 987) ........ ..._ 13, 17

Polk County v. Dodson, 454 U.S. 312 (1981) ...... passim

Powell v. Alabama, 287 U.S. 45 (1982) .............. 20

Preiser v. Rodriguez, 411 U.S. 475 (1973) ........... 24

Procunier v. Navarette, 434 U.S. 555 (1978) ......... 17

Reese v. Danforth, 486 Pa. 479, 406 A.2d. 735 (1979) _ oo

Robinson v. Bergstrom, 579 F.2d 401 (7th Cir. 1978) . 9, 11

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............ 12, 18

Silver v. Dickson, 403 F.2d 642 (9th Cir. 1968) ....... 13

Sooner Products Co. v. McBride, 708 F.2d 510 (9th Cir.

ning fC ES a am 25

Spring v. Constantino, 168 Conn. 563, 362 A.2d 87]

ded a 9, 11

Stump v. Sparkman, 435 U.S. 349. reh 9 denied, 486 U.S.

tech mdi dC ee ae A ne I Se aaa 16

Tasby v. Peek, 396 F. Supp. 952 (W.D. Ark. 1975) .. ee

Tenney v. Brandhove, 341 U.S. 367 (1951) .......... m, 7

United States v. Blacker, 335 F. mee. OE... 5... 11

Vance v. Robinson, 292 F. Supp. 786 (W.D. N.C. 1968) 11

Walker v. Kruse, 484 F.2d 802 (7th Cir. 1973) ....... 22

Washington v. Official Court Stenographer, 251 F. Supp.

apy ihecpege ci esi Oh coco dH Pe at re TE ONG od l4

Vi

Table of Authorities Continued

Page

White v. Bloom, 621 F.2d 276 (8th Cir. 1980) ........ 1]

Whirl v. Kern, 407 F.2d 781 (Sth Cir. 1969), cert. denied.

wee as Bel eee... ba... 14

Wood v. Strickland, 420 U.S. 308 (1975) .......... ls

renee ¥. 06, TUS Se) ................. 15

CONSTITUTIONAL PROVISIONS:

Rca MO, BOO, VE C¥ goon ccc. A)

i C.. eee. ATV ......... 19

STATUTORY PROVISIONS:

Oey Crete Oe CITED nce cccecce. LUGAR Os L, 2

ee lets © Oe OP Cs oe cia ee ce 1, 2

oe uc. 6 ee Cee 4. ccc... passin

Or. Rev. Stat. § 151.010 (1981) :....... 19

CW. WOW. Teme. RUE BUTI once vive ccccsse ee

OTHER AUTHORITIES:

Bator, Mishkin, Shapiro, and Wechsler, Hart and Wech-

sler's The Federal Court and the Federal System 336

Se OR, SPEED ok kk Geeks inca... >

Bazelon, The Defective Assistance of Counse 2 u. Cae.

i MEU bk cc eckdecs 21, 28, 29

Casper, Crminal Courts The De fendant's Pe rspe clive,

Be CRUE bhaekck bbe kee 29

Cong. Globe, 42d Cong., Ist Sess. App. 68 (1871) .... 7

Eisenberg, Section 1983: Doctrinal Foundations and Aw

Empirical Study, 67 Cornell L. Rev. 482

SRE Ab hk eb eee ee eke _ eo ee

Handler, Hollingsworth, and Erlanger, Lawyers and The

Pursuit of Legal Rights, 178 (1978) ............. 2s

Kaus and Mallen, The Misquiding Hand of Counsel -

Reflections on Criminal Malpractice, Zi UCLA L.

SO, CEE CUE bibs ce 2s

Vil

Table of Authorities Continued

Page

Local Rule 260-3, United States District Court, District

sendiceiies, cad ter CPO ne eR iis ahrerea 25

Mallen, The Court A pointed Lawyer and Legal

Malpractice—Liability Immunity, 14 Am. Crim. L.

er ree. 23, 27, 28

Model Code of Professional Responsibility, DR

sissy AE | One mal Aaa ean a) 20, 29

Mounts, Public Defender Programs, Professional Re -

ge ae and Competent Representation. 1982

hein cn Nemathi ing Pr he OE een

National Legal Aid and Defender Association. Thou Shalt

ann... 26,

National Legal Aid and Defender Association, The Other

eee i

Prisoner Civil Rights Committee, Federal Judicial Cen-

ter, Recommended Procedures for Handling Prison-

er Civil Rights Cases in Federal Courts (1980) . 24.

Turner, When Prisoners Sue- A Study of Prisoner Sec-

tion 198.3 Suits in The Federal Courts, 92 Harv. L.

duit Nessie cwiuckt hr i ae 23,

Veeder, Absolute Immunity in Defamation: Judicial

Proceedings, 9 Colum. L. Rev. 463 (1909) ...___

_*

IZ

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

In addition to the constitutional provisions and statutes

set out by the petitioners, the resolution of the issue in

this case involves 18 U.S.C. § 242 and 28 U.S.C. § 1915

(d).

18 U.S.C. § 242 provides in pertinent part:

Whoever, under color of any law, statute, ordinance,

os ag or custom, willfully subjects any in-

habitant of any State, Territory, or istrict to the

deprivation of any rights, privileges, or immunities

secured or protected by the Constitution or laws of

the United States, or to different punishments,

ins, or penalties, on account of such inhabitant

ing an alien, or by reason of his color, or race, than

are prescribed for the punishment of citizens. shall

be fined not more than $1,000 or imprisoned not more

than one year, or both; and if death results shall be

=e to imprisonment for any term of years or for

ife.

28 U.S.C. § 1915 (d) provides in pertinent part:

The court may a ages an attorney to represent any

such person unable to employ counsel and may dis-

miss the case if the allegation of poverty is untrue, or

if satisfied that the action is frivolous.

STATEMENT OF THE CASE

Petitioners Tower, a county public defender, and Bab-

cock, a state public defender. knowingly and deliberately

conspired with state officials to deprive Billy [rl Glover of

a fair trial and appeal. (J.A. 9, 10). Tower failed to obtain

necessary documents from state agencies that would

have enabled him to prepare a proper defense for Glover

in his criminal trial. (J.A. 7). Tower conspired with state

officials so that he did not obtain the documents necessary

for Glover's defense at trial. (J.A. 5, 6)

TP 46,

2

Following his conviction, Glover requested that peti-

tioner Babcock, the state public defender, address cer-

tain essential issues on appeal. (J.A. 8). Babcock instead

conspired with state officials to cover up the earlier

agreements with Tower, (J.A. 9), and as a result filed an

appellate brief that was incomplete, inadequate and in

error (J.A. 8). The conspiracy involved the trial court

judges, (J.A. 5), and appellate judge Johnson, the Oregon

attorney general at the time of Glover's conviction who

later placed himself on the panel that heard Glover's

appeal. (J.A. 9, 43). Believing that no state court would

call to task the conspirators who had knowingly and

deliberately deprived him of his liberty, Glover sought

redress through an action filed under 42 U.S.C. § 1983.

(J.A. 9, 10)

SUMMARY OF THE ARGUMENT

Public defenders who conspire with state officials to

deprive a client of his fundamental constitutional rights

should not be immune from liability under 42 U.S.C.

§ 1983. A judicial grant of absolute immunity for public

defenders is not supported by the language or legislative

history of § 1983. Congress intended the statute to be

broadly construed in order to provide a federal avenue of

redress for the deprivation of constitutional rights. Public

defenders who conspire with public officials to deprive

their clients of constitutional rights commit the very type

of wrong that Congress sought to remedy in the enact-

ment of § 1983.

This Court has never accorded any person immunity

from suit under § 1983 when that person did not have a

comparable grant of immunity at common law. The com-

mon law does not support a grant of absolute immunity

for public defenders because they are functionally equiva-

lent to private defense counsel, who had no immunity at

3

common law except for defamatory remarks at trial. All

defense counsel effectively retain their common law

defamation immunity under § 1983, because a lawyer's

traditional functions as counsel to a defendant are not

performed under “color of law” for the purposes of § 1983,

and thus are not subject to suit. The petitioners have

failed to justify any expansion of the immunity already

given defense counsel under § 1983.

Public defenders, like court appointed counsel, do not

perform a quasi-judicial function in the judicial process.

Their primary, if not their only, responsibility is to repre-

sent an individual client’s interests. This function is in

direct contrast to the broader public responsibilities per-

formed by a government official such as a prosecutor or

judge. A public defender does not exercise quasi-judicial

judgments on the basis of evidence presented as do

judges, prosecutors, grand juries, and parole boards, soa

grant of quasi-judicial immunity is improper. Further, a

public defender’s conspiratorial agreement with a state

official is beyond the scope of traditional defense func-

tions, and should not be protected. All persons granted

immunity by this Court are protected only for acts per-

formed within the scope of their professional duties. Be-

cause a prosecutor is given immunity protection only for

acts within the prosecutorial function, public defenders

should be similarly limited in their protection from suit

under § 1983 to acts within the defense function.

Public defenders should not be given a qualified im-

munity under § 1983 because they are not governmental

officials and did not enjoy a qualified immunity at common

law. Publie defenders do not exercise their discretion in

the public interest, so the importance of a federal dam-

ages remedy that protects the rights of individual citizens

rises to a level of paramount importance. The public

4

policy and historical considerations for granting qualified

immunity simply do not apply to this case.

Public defender immunity would inevitably result in a

denial of equal protection for some indigent criminal de-

fendants under the present Oregon statutory scheme.

Under current Oregon law, some indigent defendants are

represented by court-appointed counsel in counties that

do not have public defender systems. These defendants

have a potential avenue of redress under § 1983 against

their court-appointed attorney. Indigents represented by

public defenders in counties with public defender systems

could not bring suit against their defense counsel under

§ 1983 if public defenders gain absolute immunity. A

grant of absolute immunity would result in the arbitrary

denial of equal a. sess to a federal remedy under Oregon

law.

Public policy mandates that public defenders should be

subject to § 1983 liability. Alternate avenues to redress

constitutional violations are inadequate because Con-

gress intended § 1983 to supplement state remedies.

Criminal actions cannot be instituted by the individual,

habeas corpus proceedings fail to compensate one de-

prived of constitutional rights, and state malpractice ac-

tions may be thwarted by a state provided immunity

defense. Deprivations of constitutional rights are more

serious than violations of state rights, and therefore de-

serve a federal remedy.

Empirical evidence does not indicate that public defen-

der liability under § 1983 will overburden the criminal

justice system. Available evidence indicates that condi-

tions of confinement, rather than a prisoner’s dissatisfac-

tion with representation, provides the basis for most

§ 1983 suits. Further, few § 1983 suits proceed beyond

the pleading stage due to the difficulties of stating a

5

sufficient claim. Statistics demonstrate that defenders

actually devote little time to the defense of § 1983 suits.

-Moreover, defenders are usually covered by malpractice

insurance, or as this case exemplifies, can obtain legal

representation through the state attorney general. All of

petitioners’ policy arguments are speculative, and unsup-

ported by empirical evidence. Public policy considera-

tions defy a grant of public defender immunity when it

will result in an unjustifiable erosion of fundamental con-

stitutional rights.

ARGUMENT

I. Glover Stated A Sufficient Claim For Relief Under 42

U.S.C. § 1983.

Section 1 of the Civil Rights Act of 1871 provides a

federal remedy in money damages against “every person

who, under color of any statute .. . of any state ...,

subjects ... any citizen... to the deprivation of any

rights. . . secured by the Constitution.” 42 U.S.C. § 1983

(1976). The text of § 1983 articulates a two part jurisdic-

tional requirement: the aggrieved party must have suf-

fered (1) the deprivation of a constitutional right, (2) by a

person or persons acting “under color of law.” Adickes v.

S.H. Kress & Co., 398 U.S. 144, 150 (1970).

Billy Glover alleged the requisite jurisdictional ele-

ments of § 1983 in his claim for relief against petitioners

Tower and Babcock. Glover alleged that petitioners de-

prived him of his sixth amendment right to counsel and

fourteenth amendment right to due process through a

conspiracy with state agents, Glover’s trial judges, the

state Attorney General, and a certain judge of the Oregon

Court of Appeals.' The named officials. as agents of the

‘Glover's complaint alleged that his public defender at trial, peti-

tioner Tower, conspired to prevent him from obtaining records held

6

state, clearly meet the necessary “color of law” jurisdic-

tional requirement that is also imputed to petitioners by

virtue of their participation in the conspiracy. See Dennis

v. Sparks, 449 U.S. 24, 27-28 (1980).

Judicial immunity does not operate as a jurisdictional

bar to the institution of a § 1983 suit against persons who

conspired with the judge, nor can the co-conspirators

derive immunity from the state officials with whom they

conspired. 449 U.S. at 31-32. Glover's trial and appellate

judges’ immunity cannot therefore bar Glover's properly

stated § 1983 claim against petitioners Tower and Bab-

cock.

II. Congress Intended That § 1983 Be Liberally Construed To

Provide A Broad Federal Remedy For The Deprivation Of

Fundamental Constitutional Rights. The Statute’s Re-

medial Purpose And Scope Defy The Creation Of An Im-

munity Defense For Public Defenders.

It is well-settled that § 1983 “creates a species of tort

liability that on its face admits of no immunities.” Jmbler

v. Pachtman, 424 U.S. 409, 417 (1976). The statute’s

language is absolute and unqualified, with no mention

made of any privileges, immunities or defenses that may

be asserted. Owen v. City of Independence, Mo., 445

U.S. 622, 635 (1980). This Court has recognized, how-

ever, that the tort liability created by § 1983 cannot be

read in a historical vacuum, but that it must be construed

in light of legislative history and applicable common law

principles. City of Newport v. Fact Concerts, Inc., 453

U.S. 246, 258 (1981).

by state agencies that were necessary for Glover's defense, (J.A. 5,

6). Glover further alleged that his appellate public defender, petition-

er Babcock, conspired with state agents to cover up the prior agree-

ments with Tower, (J.A. 9), and to present an inadequate appellate

brief. (J.A. 8).

7

Legislative history shows that Congress enacted § 1 of

the Civil Rights Act of 1871 to provide a liberal and

independent federal remedy for persons who had been

deprived, under color of law, of rights guaranteed by the

United States Constitution through the fourteenth

amendment. Briscoe v. LaHue, U.S. , 103 8.Ct.

1108, 1117 (1983). The congressional sponsor of $ 1983

emphasized the statute’s remedial purpose:

[This] act is remedial, and in aid of the preserva-

tion of human liberty and human rights. All statutes

and constitutional provisions authorizing such stat-

utes are liberally and beneficially construed. . . .

[A]s has been again and again decided by your own

Supreme Court of the United States, and every-

where else where there is wise judicial interpreta-

tion, the largest latitude consistent with the words

employed is uniformly given in construing such stat-

utes and constitutional provisions as are meant to

protect and defend and give remedies for their

wrongs to all the people.” Cong. Globe, 42nd Cong.,

Ist Sess. App. 68 (1871).

While Congress intended primarily to rectify the

unwillingness of state officials to enforce state laws

against the Ku Klux Klan, Monroe v. Pape, 365 U.S. 167.

201 (1961) (Harlan, J., concurring), the tone of the con-

gressional debates was in general “surely one of overflow-

ing protection of constitutional rights.” Jd. at 196. The

sweeping language of the statute and the legislative

history indicate that Congress intended § 1983 to be

broadly construed in order to adequately redress injuries

of constitutional proportions. /d. at 201. C ongress did not

close its eyes to unjust convictions which result from

conspiratorial agreements by excluding these wrongs

from the broad reach of the statute. Contrary to petition-

ers’ stilted interpretations, a deprivation of constitutional

rights that results from a conspiracy between state offi-

cials and private persons to cause an unjust conviction is

of the same constitutional import as the deprivation of

rights caused by the unwillingness of state courts and

prosecutors to seek and impose criminal punishment.

Congress did not intend to simply federalize state tort

law in enacting § 1983, but instead sought to “give a broad

remedy for violations of federally protected civil rights.”

Monell v. Department of Social Services, 436 U.S. 658,

685 (1978). “{A] deprivation of a constitutional right is

significantly different from and more serious than a viola-

tion of a state right and therefore deserves a different

remedy.” Monroe, 365 U.S. at 196 (Harlan, J., concurr-

ing). This Court should not extend a new grant of absolute

immunity under § 1983 “in the absence of the most con-

vincing showing that the immunity is necessary.” /mbler,

424 U.S. at 434 (White, J., concurring.) Because the

statute is remedial, this Court should not abrogate the

scope of protection Congress sought to provide. Where

constitutional rights are at stake, courts should properly

construe statutes to avoid the conclusion that Congress

intended to use the privilege of immunity so as to defeat

the statutory purpose. Bator, Mishkin, Shapiro, and

Wechsler, Hart and Wechsler’s The Federal Court and

the Federal System 336 (2d ed. 1973). Public defender

immunity would severely erode the guarantee of con-

stitutional rights that Congress sought to protect

through § 1983.

Ill. Common Law Principles Do Not Support A Judicial

Grant Of Immunity For Public Defenders.

A. Public defenders are functionally equivalent to private

defense counsel, so an immunity defense is improper.

The burden of establishing the right to an immunity

defense is on the official claiming its entitlement. Dennis,

449 U.S. at 29. When a defendant in a § 1983 suit asserts

9

an immunity defense, this Court recognizes it only if the

common law historically accorded that person immunity

from suit. /mbler, 424 U.S. at 421. Ten ney Vv. Brandhove,

341 U.S. 367, 376-377 (1951).

The concept of publicly appointed and subsidized repre-

sentation for indigent criminal defendants did not exist at

common law. Robinson v. Bergstrom, 579 F.2d 401. 409

(7th Cir. 1978); Minns v. Paul, 542 F.2d 901 (4th Cir.

1976), cert. denied, 429 U.S. 1102 (1977): Betts v. Brady,

316 U.S. 455, 466 (1942). Public defender programs were

largely created after 1963, in response to the due process

requirements established by Gideon v. Wainwright, 372

U.S. 335 (1963) and its progeny.’ The void created by a

paucity of common law history, however. may be re-

medied by comparing the function of the position at issue

with that of a similar position which had immunity at

common law. Jmbler, 424 U.S. at 422-423.

This Court has affirmatively stated that “the primary

office performed by appointed counse! parallels the office

of privately retained counsel.” Ferri y. Ackerman, 444

U.S. 193, 204 (1979). Thus, the court appointed attorney

is no more a public official than his private counterpart,

Although it is true that appointed counsel serves

pursuant to statutory authorization and in further-

ance of the federal interest in insuring effective rep-

resentation of criminal defendants. his duty is not to

the public at large, except in that general way. His

principal responsibility is to serve the undivided

interests of his client. Indeed. an indispensable ele-

ment of the effective performance of his responsibili-

* At least one state, however, has had court-appointed attorneys

for indigent criminal defendants since 1892. See Spring v. Con-

stantino, 362 A.2d 871, 874 n.2 (Conn. 1975).

10

ties is the ability to act independently of the govern-

ment and to oppose it in ste litigation.” 444

U.S. at 204 (emphasis added).

From the moment that a public defender is appointed, he

assumes a relationship with the accused that is identical

to that existing between any other defense lawyer and

client. Polk County v. Dodson, 454 U.S. 312, 318. The

public defender serves a private function, so governmen-

tal immunity is inappropriate.

In Ferri, this Court held that a court appointed attor-

ney does not haye immunity under federal law from a

state malpractice action. Jd. at 205. Although the attor-

ney had been appointed under the Criminal Justice Act

and paid by the government, the Court noted that “count-

less private citizens are the recipients of federal funds of

one kind or another, but Congress surely did not intend

that all such recipients would be immune for actions taken

in the course of expending those funds.” /d. at 201. A

public defender system's source of operational funds,

whether federal, state or county, does not therefore jus-

tify a new grant of immunity.

In Polk County, supra, the respondent argued that

even if the “function” of a public defender is not distinct

from that of a private lawyer, the public defender’s “sta-

tus” is materially different from that of the private de-

fense attorney. 454 U.S. at 320-321. This argument was

rejected in favor of the view that a public defender’s

“status” is insufficient to establish that a public defender

acts under “color of state law.” 454 U.S. at 321. Defense of

the criminally accused is essentially a private function—

whether filled by retained counsel, appointed counsel, or

a public defender. /d. at 318-319. The same reasons that

prompted this Court to state that public defenders do not

act “under color of law” also dictate that defenders do not

1]

warrant the cloak of governmental immunity. Since pub-

lic defenders perform precisely the same function as court

appointed and private defense counsel. public defenders

should only obtain the limited immunity that is afforded

private defense counsel.

1. Defense attorneys do not have immunity at common

law except for defamatory remarks made at trial. Pub-

lic defenders should have the same limited immunity

under § 1983.

Privately retained attorneys did not have blanket im-

munity from all liability at common law. They were sub-

ject to malpractice actions based upon prior civil and

criminal proceedings. See Branson v. ( Jregon Railroad,

10 Or. 278, 295 (1881); Malone v. Sherman, 49 N.Y. Sup.

Ct. 530 (1883). Several states currently deny immunity

for public defenders in malpractice actions. Spring v.

Constantino, 362 A.2d 871, 879 (Conn. 1975); Reese v.

Danforth, 406 A.2d 735 (Pa. 1979): Don igan Vv. Finn, 290

N.W.2d 80 (Mich. 1980).

Numerous federal courts have also reached the con-

clusion that the common law accords no immunity to

public defenders sued by clients for malpractice. See

White v. Bloom, 621 F.2d 276 (8th Cir. 1980); Robinson vy.

Bergstrom, 579 F.2d at 411; Tasby v. Peek, 396 F. Supp.

952, 958 (W.D. Ark. 1975): Louisia na Vv. Crolino, 393 F.

Supp. 1362, 1364 (D. Nev. 1974); Hill v. Lewis. 36] F.

Supp. 813, 818 (E.D. Ark. 1973); United States v. Black-

er, 335 F. Supp. 43, 46 (D.C.N.J. 1971): Vance v. Robin-

son, 292 F. Supp. 786, 788 (W.D.N.C. 1968).

The common law provided counsel with a minimal

shield of immunity in that defamatory statements made

during judicial proceedings were privileged only if the

remarks were relevant to the subject matter at issue.

Imbler, 424 U.S. at 426 n.23. Prosecutor and defense

12

counsel were given latitude solely for the examination of

witnesses and for commentary upon witness testimony

and demeanor under oath. Veeder, Abso/ute Timmunity

in Defamation; Judicial Proceedings, 9 Colum. L. Rev.

463, 482 (1909). Courts granted trial counsel immunity

from defamation suits as a means to promote the free and

unfettered administration of justice. /d. at 482.

This Court need not extend immunity to all acts within

and without the defense function in order to preserve the

policies that underlie defamation immunity. A public de-

fender’s defamation immunity is effectively preserved

under § 1983 by virtue of the color of law pleading

requirement. Under Polk County, supra, the acts per-

formed during traditional defense functions (including

defamatory remarks) are not exercised under “color of

law,” and thus are not subject to § 1983 lawsuits. 454 U.S.

at 324.

In Owen v. City of Independence, 445 U.S. at 638, this

Court explained that all common law immunities are not

autoratically incorporated into § 1983:

(TJhe Court's willingness to recognize certain tradi-

tional immunities as affirmative defenses has not led

it to conclude that Congress incorporated all immuni-

ties existing at common law. See Scheuer v. Rhodes,

416 U.S. 232, 243, 94S.Ct. 1683, 1690, 40 L. Ed 2d 90

(1974). Todecd. because the 1871 Act was designed to

expose state and local officials to a new form of liabil-

ity, it would defeat the promise of the statute to

recognize any pre-existing immunity without

determining both the policies that it serves and its

compatibility with the purposes of § 1983. See Iimbler

v. Pachtman, 424 U.S. at 424.

Because defense counsel had limited immunity at com-

mon law, this Court should not now further expand the

immunity provided by § 1983. Common law defamation

13

immunity does not support boundless immunity for public

defenders when “performing their role in the judicial]

process” as petitioners assert. (Petitioners’ brief at 20).

Petitioners have not justified any expansion of the im-

munity which was incorporated into the statute by Con-

gress. Public defenders should be liable for conspiratorial!

acts which deprive their clients of constitutionally pro-

tected rights.

B. Public defender immunity is improper because defen-

ders exercise a private function, not a quasi-judicial

function.

Judicial immunity exists because judges, in whom dis-

cretion is entrusted, must be able to exercise vigorous

and impartial discretion on behalf of the public without

apprehension of subsequent burdensome litigation. Pier-

son Vv. Ray, 386 U.S. 547, 554 (1967). Courts have spar-

ingly accorded § 1983 immunity to other participants in

the judicial process. Too broad a swath of protection from

suit would judicially repeal the congressional mandate

that “every person acting under color of law” is subject to

suit for actions which deprive others of constitutional

rights. See City of Newport, 453 U.S. at 259. Absolute

immunity is therefore extended onl y to those other parti-

cipants in the judicial process who exercise a “quasi-

judicial” decision making function similar to that of the

judge, such as prosecutors,’ grand jurors,’ petit jurors,

and parole board members.” The dispositive attribute is

therefore not a formal association with the judicial proe-

lithler v. Pachtman. 424 U.S. 409 (1976).

‘Jd

‘Butz v. Economou, 488 US. 478, WO9 (1978) (dictum)

*Siver v. Dickson, 408 F.2d 642 (9th Cir. 1G6M).

14

ess, but rather the actor’s exercise of a quasi-judicial

function.

When one involved in the judicial process does not

exercise a judicial or quasi-judicial function, he has no

immunity, despite the person's integral relationship with

the judicial system. Court stenographers,’ jailers,” and

court clerks,” do not serve a quasi-judicial function in the

judicial process, and therefore do not have immunity

founded on federal interests. Court appointed counsel do

not have federal immunity from state malpractice suits

because they serve a private, not a quasi-judicial function

in the judicial process. Ferri, 444 U.S. at 202-204. Public

defenders, like court appointed attorneys, also perform a

purely private function, and thus should not be given

quasi-judicial immunity from § 1983 lawsuits.

The prosecutor and the public defender perform func-

tions so different in nature that any attempt to functional-

ly compare the two is suspect. Contrary to petitioners’

assertions that a public defender performs “equivalent

judgmental functions” to that of a prosecutor (petitioners’

brief at 23-24), defender judgments relate only to an

individual client's case, as opposed to the purely public

nature of prosecutorial judgments. This Court has em-

phasized that “the primary, if not the only, responsibility

of an assistant public defender is to represent individual

citizens in controversy with the state.” Branti v. Finkel,

445 U.S. 507, 519 (1980). “This [function] is in contrast to

eercaemetipe nmin neoanien: emai

Washington ¥. Otfimal Court Ste nora pher, 251 a Supp O15

(E.D. Pa. 1966).

"Whirl vy. Kern. 407 F.2d 71 (Sth Cir. 1969). cert. denied. 296 U >

901 (1989)

* McCray v. Maryland, 456 F 2d 1 (4th Cir. 1972).

15

the broader public responsibilities of an official such as a

prosecutor.” Jd. at 519 n. 13.

A public defender’s investigatory decisions and alloca-

tion of fiscal resources relate only to individual client

interests, not the public interest. The resource allocation

decisions made by a prosecutor, in contrast, represent

the interests of the public constituency as a whole. Policy

decisions made by a public defender “must relate to the

needs of individual clients.” 445 U_S. at 519. Thus, the

“special nature” of public defender responsibilities (peti-

tioners’ brief at 23) do not compare at all to the public

nature of a prosecutor's responsibilities.

A prosecutor’s immunity for malicious prosecution is

based on decisions similar to those made by a grand jury

as to whether a particular prosecution should be in-

stituted or followed up. See Yaselli y. Goff, 275 U.S. 503

(1927). The decision to prosecute is quasi-judicial because

the prosecutor must exercise a discretionary judgment on

the basis of evidence presented. /mbler, 424 U.S. at 423

n.20. Public defenders, however. are not authorized to

initiate or terminate a case, nor do they decide the guilt or

innocence of their clients. A functional comparison be-

tween public defender and prosecutor disproves petition-

ers’ theory of defender immunity.

The witness is the only participant in the judicial proc-

ess who possessed immunit y at common law despite hav-

ing no judicial or quasi-judicial decision making authority.

See Briscoe v. LaHue, ___ Ue oan, SOECe 16m

(1983). Public policy mandates witness immunity so that

testimony at trial may be free of distortions that can

potentially result from the fear of subsequent civil liabil-

ity. /d. at 1114. These public policy concerns do not pro-

vide a persuasive basis for extending immunity to public

defenders. Therefore, because the public defender does

16

not perform a quasi-judicial function, a grant of immunity

is improper.

C. When a public defender conspires with a government

official to deprive his client of constitutional rights. he

acts outside the scope of his professional duties. I[m-

munity should not be accorded to acts that are outside

the scope of professional duties.

Never has a grant of immunity been extended to per-

sons acting outside the scope of their professional duties.

See Stump v. Sparkman, 435 U.S. 349, reh'g denied, 436

U.S. 951 (1978). A public defender’s conspiracy with a

judge or other public official is not within the ambit of

traditional defense functions, so a policy that mandates

defender liability under § 1983 is proper.

A prosecutor is absolutely immune only for acts taken

within the prosecutorial function, which includes the in-

itiation of a prosecution and the presentation of the state's

case. [mbler, 424 U.S. at 430-431. The /mbler Court

expressly reserved the issue whether a prosecutor has

absolute immunity when he acts as an administrator or

investigative officer, but the courts of appeals generally

have ruled that prosecutors do not enjoy immunity for the

performance of these tasks. See Wancini v. Lester, 680

F.2d 990, 992 (3d Cir. 1980); Coleman v. Turpen, 697

F.2d 1341, 1346 (10th Cir. 1982); Beard v. Udall, 648 F.2d

124. 1271 (9th Cir. 1981): Hampton v. City of Chicago,

484 F.2d 602, 608 (7th Cir. 1973); cert. denied, 415 U.S.

917 (1974) (prosecutor's immunity ceases when he acts in

a capacity other than his quasi-judicial role); Harlow v.

Fitzgerald, 457 U.S. 800 (1982). Similarly, judges enjoy

absolute immunity only for those acts performed within

the scope of their judicial capacity and concurrent subject

matter jurisdiction. Stump v. Sparkman, 435 U.S. at

355-357, 361.

17

Public officials are given immunity solely for the bene-

fit of the public whose interest it is that those officials

should be at liberty to exercise their proper public func-

tions with independence and without fear of con-

sequences. See Pierson, 386 U.S. at 554. The con-

spiratorial actions that petitioners now assert should be

cloaked with immunity are not equivalent to the public

functions that this Court has determined need protection.

Section 1983 liability for conspiratorial actions will not

affect a public defender’s ability to exercise primary

lawyering functions with independence and without fear

of reprisal. The conspiracy requirement limits the num-

ber of triable suits to those that are predicated upon acts

outside the scope of a public defender’s authorized

lawyering functions. This Court should not extend public

defender immunity beyond the bounds already recog-

nized by Congress in the enactment of § 1983.

D. Public defenders are not governmental officials <o they

are not entitled to qualified immunity.

Petitioners correctly argue that public defenders

should not be given qualified immunity, but arrive at this

upon faulty reasoning. The availability of an immunity

defense is derived from an analysis of the functions and

responsibilities of the actor in his-capacity as a state

official in light of the purposes of § 1983. Scheuer, 416

U.S. at 242-243.” A finding of qualified immunity, like a

*This Court has accorded immunity to the following various

government officials under § 1963 and claims brought directly under

the Constitution: state legislators (absolute immunity) Tenwy

Brandhove, 341 U.S. 367 (1951): federal executive officials (qualified

immunity) Butz v. Economou, 438 U.S, 478 (19TS): state prison

officials (qualified immunity) Procunier v. Navarette. 434 US. 335

(1975); congressional aides (absolute immunity) Gravel v. United

States, 408 U.S. 606 (1972): state governors university presidents

18

finding of absolute immunity, is usually preceded by an

inquiry into whether the actor enjoyed immunity at com-

mon law. Dodson v. Polk County, 628 F.2d 1104, 1107

(1980), rev'd on other grounds, Polk County v. Dodson,

supra. The common law qualified immunity standard de-

fies inclusion of public defenders because they are not, as

this Court has repeatedly recognized, “public officials.”

See Ferri, 444 U.S. 193. The inquiry then shifts to deter-

mine whether public defenders should enjoy qualified

immunity as a matter of public policy. —

The recognition of a qualified immunity defense for

public officials reflects “an attempt to balance competing

values: not only the importance of a damages remedy to

protect the rights of citizens, but also ‘the need to protect

officials who are required to exercise their discretion and

the related public interest in encouraging the vigorous

exercise of official authority.’ " Harlow v. Fitzgerald, 457

U.S. 800, 807, quoting Butz v. Economou, 438 U.S. at

304-506. Because public defenders are not officials who

represent the public interest in an exercise of official

authority, the second prong of the Har/ow balancing test

is moot. The protection of citizen rights through the

§ 1983 damages remedy therefore is paramount over any

other policy considerations. As a matter of public policy,

defenders should not have a qualified immunity from

their already limited exposure to § 1983 liability.

(qualified immunity) Scheuer v. Rhodes, 416 U.S. 232 (1974): Presi-

dent United States (absolute immunity) Nicon v. Fitzgerald, 457

U.S. 731 (1982); police officers (qualified immunity) Pierson v. Ray,

supra, state hospital superintendents (qualified immunity) O'Connor

v. Donaldson, 422 U.S. 563 (1975); school board members (qualified

immunity) Wood v. Strickland, 420 U.S. 308 (1975).

19

IV. Public Defender Immunity Would Result In The

Deprivation Of Equal Protection Under Oregon Law

For Similarly Situated Indigent Criminal Defendants.

Public defender immunity under § 1983 will inevitably

result in a denial of equal protection for certain indigent

defendants in Oregon. Under O.R.S. 151.010 and O. R.S.

151.150 Oregon district and circuit court judges are em-

powered to appoint either a private defense attorney ora

public defender to represent indigent criminal defend-

ants. Petitioners’ brief at App. 1-2. Courts therefore

appoint only private defense counsel to represent in-

digents in the twenty-eight Oregon counties which do not

have public defender systems. Those defendants who

receive private representation under authorit y of Oregon

law have a potential avenue of redress under § 1983. An

indigent represented by a public defender under the same

laws, however, will be precluded from bringing suit

under § 1983 if defenders have immunity. Thus, similarly

situated indigent criminal defendants will be deprived of

equal protection under Oregon laws.

This Court has recognized that poverty cannot be the

sole reason for the denial of access to a judicial proceed-

ing, because such arbitrary state procedures violate the

Due Process Clause of the fourteenth amendment. Bod-

die v. Connecticut, 401 U.S. 371. 376, 383 (1971). Also,

once the right to appeal has been accorded by statute it

“cannot be granted to some litigants and capriciously or

arbitrarily denied to others without violating the Equal

Protection Clause.” Lindsey v. Normett, 405 U.S. 56, 77

(1972). The wi erie Clause will potentially be

violated under Ofegon law because the § 1983 claims of

indigents represented by public defenders will be barred

by immunity, but the § 1983 claims of indigents repre-

sented by court appointed counsel! will proceed without

hindrance. Whether an indigent person is represented by

20

court appointed counsel or by a public defender in Oregon

depends solely upon the statutory scheme and the luck of

the draw. The arbitrariness of such a system is obvious.

This Court should not grant immunity to public defenders

under § 1983 when it will result in a denial of equal access

to the courts for certain indigent criminal defendants.

The Oregon statutory scheme may also cause indigent

defendants to receive ineffective assistance of counsel.

The right to assistance of counsel at a criminal trial is

essential to a system of equal justice, but the right to

counsel is valueless if it does not mean the right to effec-

tive assistance of counsel. McMann v. Richardson, 397

U.S. 759, 771 n.14 (1970); see Powell v. Alabama 287 U.S.

45 (1932).

Immunity from § 1983 liability effectively reduces an

attorney's accountability to his client. An attorney with-

out full accountability will not likely perform his duties

with due care. The American Bar Association recognized

this fact long ago when it prohibited any attorney from

entering into a contractual agreement with his client “to

exonerate himself from or limit his liability to his client for

his personal malpractice.” Model Code of Professional

Responsibility DR 6-102(a).

Public defender immunity would cause a potential de-

nial of the sixth amendment right to effective assistance

of counsel for those indigents who are represented by

public defenders under Oregon law. Indigents similarly

situated may receive differing qualitative levels of legal

representation as a result of the joint operation of federal

public defender immunity and Oregon criminal defense

laws. Section 1983 provides indigents the sole means of

vindicating constitutional rights. One indigent should not

be precluded from obtaining money damages for the

deprivation of fundamental constitutional rights when

21

another, similarly situated, has open access to remedies

under the same statute. Public defender immunity under

§ 1983 is therefore unwarranted and constitutionally sus-

pect.

V. Public Policy Considerations Mandate That Public De-

fenders Should Be Subject To § 1983 Liability.

A. Alternate state remedies do not adequately redress the

violation of fundamental constitutional rights.

Petitioners argue that an indigent client may use alter-

nate remedies to redress constitutional violations. These

alternatives are inadequate because Congress enacted

§ 1983 to supplement state remedies. Monroe v. Pape,

365 U.S. at 167. Further, a plaintiff need not first exhaust

state remedies before bringing a federal action under

§ 1983. Jd. In Monroe, this Court stated that persons

must have access to a neutral federal forum in order to

litigate federal rights because, “by reason of prejudice,

passion, neglect, intolerance or otherwise, state laws

might not be enforced and the claims of citizens to the

enjoyment of rights, privileges, and immunities guaran-

teed by the Fourteenth Amendment might be denied by

the state agencies.” 365 U.S. at 180.

Only the federal govenment can bring criminal charges

against a public defender under 18 U.S.C. § 242 (1976),

the criminal analog of § 1983. An indigent cannot institute

such action, and the § 242 proceeding does nothing to

redress the indigent’s constitutional injuries. Profession-

al sanctions have little practical effect. “Unfortunately,

the bar associations, like most professional societies,

have shown themselves unable or at least unwilling, to

police their own members.” Bazelon, The Defective As-

sistance of Counsel, 42 U. Cin. L. Rev. 1, 17 (1973).

Moreover, professional disciplinary action gives no reme-

dy to the indigent.

29

—

Federal and state habeas corpus proceedings only rem-

edy a loss of liberty and fail to compensate a citizen who

has suffered a violation of other civil rights. A malpractice

suit generally poses a false hope for the indigent who

cannot afford to retain private counsel in the first place.

Even if the second attorney can be retained on con-

tingency, a malpractice suit may still be thwarted by tort

immunity for public defenders under state law. See Wal-

ker v. Kruse, 484 F.2d 802 (7th Cir. 1973) (dicta); Polk

County v. Dodson, 454 U.S. at 453.

The remedies that petitioners recommend have limited

impact. Some are designed only to gain a prisoner release

from custody, while others only punish the errant defen-

der. None give monetary compensation to the wronged

indigent defendant. None of the proposed remedies

afford the type of relief mandated by Congress under

§ 1983. As Justice Harlan admonished, “{A] deprivation

of a constitutional right is significantly different from and

more serious than a violation ofa state right and therefore

deserves a different remedy.” Monroe, 365 U.S. at 196

(Harlan, J., concurring). Public defender immunity

would cripple the broad remedy that Congress intended

§ 1983 to provide for violations of federally protected civil

rights.

B. Public defender liability under § 1983 will not overbur-

den the criminal justice system.

Public defender liability under § 1983 will not result in

“a wide range of frivolous $ 1983 suits which will consume

the time and energy of an already overburdened criminal

justice system.” (quoting petitioners’ brief at 26). While

the total number of prisoner-filed civil rights suits may

have increased over the past ten years, petitioners are

merely speculating that a significant number have been

filed against public defenders or court appointed attor-

23

neys. Statistics do not specify the percentage of prisoner

suits which named former defense attorneys as defend-

ants, nor the number of suits alleging a conspiracy. Sta-

tistics also do not foreshadow a new surge of § 1983 suits if

immunity is denied.

It is true that accurate statistics regarding § 1983

litigation are difficult to obtain.'' Published studies, how-

ever, indicate that prisoner civil rights suits filed against

former defense attorneys do not burden the federal

courts. One study, which focused on the United States

District Court for the Central District of California, re-

vealed that of the 125 prisoner civil rights cases filed in

1975, only seven claims alleged problems of legal repre-

sentation. Eisenberg, Section 1983: Doctrinal Founda-

tions and An Empirical Study, 67 Cornell L. Rev. 482,

039 n.237, 555 (1982). Only five of the 87 cases filed in the

same district during 1976 dealt with prior legal represen-

tation. /d. Most § 1983 claims during both years involved

prison conditions. Jd. at 538.

A study which focused on five federal districts found

that almost 80% of prisoner civil rights suits filed in 1975,

1976 and the first six months of 1977 dealt with claims

relating to conditions of confinement. Turner, When Pris-

oners Sue: A Study of Prisoner Section 1983 Suits in the

Federal Courts, 92 Harv. L. Rev. 610, 623 (1979). Other

claims in the same study primarily alleged “parole denial

'' The basic source regarding the number and types of suits filed in

federal court each vear is the Administrative Office of the United

States, Annual Report of the Director. While the Annual Report

records the number of civil rights suits filed against attorneys, in-

cluding public defenders, prisoner lawsuits are not categorized more

specifically than “prisoner civil rights.”

It is hardly surprising that the majority of prisoner civil rights

cases concern conditions of confinement. “What for a private citizen

24

or revocation, detainers, sentence computation, improp-

er arrest or police misconduct, prosecutorial misconduct,

erroneous conviction or unfair trial, and problems with

court personnel.” /d. Prisoner claims directed against

court-appointed attorneys or public defenders evidently

lacked sufficient frequency and significance to merit spe-

cific mention in the Turner study.

Statistics which reflect the number of suits filed paint a

distorted picture because most § 1983 claims never reach

the trial stage. The 1976 Eisenberg study showed that of

the 125 § 1983 cases filed in 1975, only three went to trial.

None of the 87 prisoner civil rights cases filed in 1976

went to trial. Eisenberg, supra, 67 Cornell L. Rev. at

504. In fact, almost 97% of all prisoner-initiated § 1983

cases terminated in federal court in 1979 were dismissed

at the pleading stage or otherwise concluded prior to

trial. Prisoner Civil Rights Committee, Federal Judicial

Center, Recommended Procedures for Handling Prison-

er Civil Rights Cases in Federal Courts 10 (1980)

(hereinafter “Aldisert Report”). The Turner study

yielded similar findings."

That few § 1983 suits proceed beyond the pleading

stage is hardly surprising. Many plaintiffs are unedu-

would be a dispute with his landlord, with his employer, with his

tailor, with his neighbor, or with his banker becomes, for the prison-

er, a lispute with the state.” Preiser v. Rodriquez, 411 U.S. 475, 492

(1973). Every such dispute can be filed under § 1983.

'’ Turner found that a high proportion of prisoner cases are (lis-

posed of at the pleading stage. In the Eastern District of California,

80.4% of the cases filed in 1976 were terminated by the court. In the

same year, the District of Massachusetts tried no prisoner claims and

the Northern District of California and the District of Vermont tried

only one prisoner case. Nationally, only 268 or 4.2 of all prisoner

cases went to trial. Turner, supra, 92 Harv. L. Rev. at 617-618.

25

cated, without funds, possibly incarcerated, and unfamil-

iar with the civil machinery of the legal system. Mallen.

The Court Appointed Lawyer and Legal Malpractice-

Liability Immunity, 14 Am. Crim. L. Rev. 59, 69 (1976)..

Moreover, the majority of prisoner civil rights cases are

dismissed sua sponte under authority of 28 U.S.C.

§ 1915(d) (1976) when a court determines that the action

is “frivolous or malicious.” See Aldisert Report, supra, at

99-63. The Turner study found that 68% of all prisoner

cases filed nationwide in 1978 were terminated by the

court without any response from the defendant. Turner,

supra, 92 Harv. L. Rev. at 617-618. Furthermore, local

rules may authorize the dismissal of a claim when the

party fails to proceed with diligence. Local rule 260-3,

United States District Court, District of Oregon.

Section § 1983 pleading hurdles are now higher than

ever. A plaintiff must adequately allege a deprivation of

constitutional rights “under color of law.” While it is true

that a pro se complaint must be liberally construed,

Haines v. Kerner, 404 U.S. 519, 520-21 (1972), it must

nevertheless state a sufficient claim. Conclusory allega-

tions without supporting facts are subject to immediate

dismissal. See Sooner Products Co. v. McBride, 708 F.2d

510, 512 (9th Cir. 1982). The practicalities of pleading

thus act to further confine a defender’s potential exposure

to § 1983 litigation.

Presumably, the “flood of litigation” that petitioners

anticipate would have occurred prior to this Court’s deci-

sion in Polk County v. Dodson, where a defender’s poten-

tial liability under § 1983 was severely curtailed. Follow-

ing Polk County, a public defender is subject to § 1983

liability only when he deprives another of Constitutional

rights through a conspiracy with a public official, because

a lawyer's traditional functions as counsel to a defendant

are not performed under “color of law.” 454 U.S. at 325.

26

The dreaded “flood of litigation” is mere puffery. The

solution to heavy federal caseloads is not the reduction of

constitutional remedies.

As long as attention focuses on whether there are too

many section 1983 cases, one need not focus on the

larger question on what the law of constitutional

remedy should be. Even if there are ‘too many’ sec-

tion 1983 cases, we would have to decide whether the

attendant problems are tolerable in light of the

‘adie afforded constitutional rights. The num-

ers game provides a convenient distraction from the

underlying issues. Eisenberg, supra, 67 Cornell L.

Rev. at 549.

Statistics do not warrant a grant of public defender im-

munity when it will erode the constitutional protections

offered by a federal forum.

C. Public defenders are not required to reallocate re-

sources in order to defend prisoner initiated § 1983

suits.

While it is axiomatic that the time spent by public

defenders for the defense of civil suits brought by former

clients will reduce their time available for criminal de-

fense, empirical evidence demonstrates that defenders

actually devote little time to the defense of § 1983 suits.

Claims against defense counsel are comparatively insig-

nificant to other § 1983 claims, and the few cases that do

survive dismissal are collectively insubstantial so as to

require defenders to reallocate temporal resources.

Cost figures for the defense of prisoner § 1983 suits are

not available. Most public defenders should be covered by

malpractice insurance, so defender systems suffer a mini-

mal financial burden." In addition, as this case ex-

‘4 Public defender programs have access to low cost professional

liability insurance through membership in the National Legal Aid

9) rd

re |

emplifies, public defenders can obtain legal representa-

tion through the state Attorney General. It is the legisla-

ture’s role to provide additional] funding for the programs

they create. Fundamental constitutional rights should

not be prematurely and needlessly curtailed upon the

basis of petitioners’ speculative and exaggerated claims.

D. The recruitment and retention of public defenders will

not suffer as a result of § 1983 liability.

Public defender quality and quantity will not be

adversely affected if defenders are not given immunity

from § 1983 actions. Some courts have accorded grants of

public defender immunity based upon such speculation,

Black v. Bayer, 672 F.2d 309. 319 (1982), but these

speculative consequences are unsupported by empirical

evidence. See Ferri, 444 U.S. at 204-205.

Survey results in California demonstrated that “appar-

ently, the reality of malpractice has not occurred to most

public defenders and very few plans have been made for

such a contingency.” Mallen, supra, 14 Am. Crim. L.

Rev. at 70. All lawyers face the possibility of defending a

malpractice claim, frivolous or otherwise, but this draw-

back has not reduced the number of attorneys seeking

employment." Statistics show that private counsel are

and Defender Association. NLADA, Thou Shalt Not Ration Justice,

17 (Dec. 1982) (circular distributed to new members).

Between 1,575 and 2,000 full-time counsel would be required to

represent all indigent misdemeanants. . . These figures are relative-

lv insignificant when compared to the estimated 335,200 attorneys in

the United States. . . a number Which is projected to double by the

year 1985. Indeed, there are 18.000 new admissions to the bar each

year—3,500 more lawyers than are required to fill the “estimated

14,500 average annual openings.” Argersinger v. Hamlin, 407 U.S.

23, 33 n.7 (1972).

28

ready and willing to represent criminal defendants, de-

spite § 1983 exposure. See Mallen, supra, 14 Am. Crim.

L. Rev. at 69.

Chief Judge Bazelon has noted that the number of

criminal malpractice suits “is not at al! significant now.”

Bazelon, supra, 42 U. Cin. L. Rev. at 17. Another com-

mentator stated that “there have been few malpractice

suits brought against criminal attorneys, and thus far,

the number of successful suits has been miniscule.”

Mounts, Public Defender Programs, Professional Re-

sponsibility, and Competent Representation, Wis. L.

Rev. 473, 515 n.175 (1982). See also Kaus and Mallen. The

Misguiding Hand of Counsel—Reflections on Criminal

Malpractice, 21 UCLA L. Rev. 1191, 1193 (1974).

A denial of public defender immunity will not affect the

retention of defenders. Lawyers hired by the Legal Serv-

ices Corporation work under many of the same conditions

as public defenders, e.g., low pay, high case-loads, a

clientele that is exclusively indigent, and the threat of

potential § 1983 lawsuits. Handler, Hollingsworth and

Erlanger, Lawyers and the Pursuit of Legal Rights, 178

(1978). The Handler, et a/ study pointed to “structural

reasons why lawyers. . . leave Legal Services, [that are]

not necessarily related to a change in or lack of commit-

ment. Working conditions in Legal Services offices are

poor. Lawyers are inundated with masses of cases that

cause feelings of monotony and the conviction that legal

skills are being wasted on routine tasks.” Jd. The defense

of potential § 1983 suits is not a primary nor even a

substantial reason that criminal defense attorneys

change employment situations.

Finally, petitioners’ assertion that absolute immunity

would encourage more competent attorneys to apply for

public defender positions is specious. It is the mediocre

29

lawyer who must fear malpractice liability, and who will

find a position that enjoys absolute immunity particularly

attractive. Tort liability encourages adherence to pre-

scribed standards of conduct, as evidenced by the Amer-

ican Bar Association’s view that attorney efforts to limit

liability to clients is unethical. See Model C ode of Profes-

sional Responsibility DR 6-102.

Criminal defendants are already subjected to inferior

legal representation. For instance, Chief J udge Bazelon

explained that “what I have seen in 23 years on the bench

leads me to believe that a great many—if not most—

indigent defendants do not receive the effective assist-

ance of counsel guaranteed by the Sixth Amendment.”

Bazelon, supra, U. Cin. L. Rev. at 2. The National Legal

Aid and Defender Association has also concluded that

“the scope of representation provided for indigent de-

fendants in many jurisdictions does not even meet specific

constitutional directives of the Supreme Court.” National

Legal Aid and Defender Association, The Other F ace of

Justice 70 (1973).

Indigent criminal defendants have echoed these con-

cerns, expressing the belief that appointed counsel are

inferior substitutes for retained attorneys. See Casper,

Criminal Courts: The Defendant's Perspective 31, 8]

(1978). Public defender immunity would only work to

exacerbate an already intolerable situation.

CONCLUSION

The broad remedial purpose of § 1983. combined with

legal history, common law principles, and public policy

considerations mandate that public defenders should not

gain governmental or quasi-judicial immunity under

§ 1983 because they perform a purely private function.

?

30

The decision of the Court of Appeals for the Ninth Cir-

‘+ cuit, which held that public defenders do not have immun-

itv under $ 1983, should be affirmed.

Respectfully submitted,

RICHARD A. SLOTTEE

CraAIG K. EDWARDS

Counsel for Respondents