Amicus Curiae Brief — Felder v. Casey

Suoreme Court US

FILiD

‘an 20 1588

Case No, ieee | JOSEPH F

c

Ch ANIOL, JR

218

-_—

I

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

BOBBY FELDER,

Petitioner,

v.

DUANE CASEY, et al.,

Respondents.

ON WRIT OF CERTIORARI

TO THE WISCONSIN SUPREME COURT

BRIEF OF AMICI CURIAE, THE STATES OF

CALIFORNIA, COLORADO, IDAHO, INDIANA,

IOWA, MICHIGAN, NEW MEXICO, OKLAHOMA,

PENNSYLVANIA, UTAH, VERMONT, VIRGINIA,

WEST VIRGINIA, WISCONSIN, WYOMING

IN SUPPORT OF RESPONDENTS

DONALD J. HANAWAY

Attorney General of Wisconsin

CHARLES D. HOORNSTRA

ARLEEN E. MICHOR

As tant Attorn General

) sconsin

Attorneys for Amici States

List of Additional Counsel

on Inside Cover

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-9231

John K. Van de Kamp

Attorney General

State of California

Duane Woodard

Attorney General

State of Colorado

Jim Jones

Attorney General

State of Idaho

Linley E. Pearson

Attorney General

State of Indiana

Thomas J. Miller

Attorney General

State of Iowa

Frank J. Kelley

Attorney General

State of Michigan

Hal Stratton

Attorney General

State of New Mexico

Robert H. Henry

Attorney General

State of “klahoma

LeRoy S. Zimmerman

Attorney General

State of Pennsylvania

David L. Wilkinson

Attorney General

State of Utah

Jeffrey Amestoy

Attorney General

State of Vermont

Marcy Sue Terry

Attorney General

State of Virginia

Charles G. Brown

Attorney General

State of West Virginia

Joseph B. Meyer

Attorney General

State of Wyoming

QUESTION PRESENTED

Does it violate federal policy for a

State to apply its notice of claim

Statute as a condition precedent to Suit

in state-court actions brought under 42

U.8.C. 3 1983?

BEST AVAILABLE COPY

@ i «

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...ccccecccsecceeee§ i

INTEREST OF THE AMICI CURIAE ........- 1

SUMMARY OF ARGUMENT .....eeeeeccccevee § 2

ARGUMENT wcccccccccccccccccccesesseses 4

IT DOES NOT VIOLATE FEDERAL

POLICY FOR A STATE TO APPLY ITS

NOTICE OF CLAIM STATUTE AS A

CONDITION PRECEDENT TO SUIT IN

STATE COURT ACTIONS BROUGHT

UNDER 42 U.S.C. § 1983. wuveeeeee 4

A. Federalism requires’ the

use of state law if not

inconsistent with federal

POLICIES. ceccccccccccsccses 4

B. The notice rule is not

inconsistent with the

federal policies. ......... Ill

Ce Petitioner's cases are

inapposite. eee eoeeseee#e#esee#e#e#e#se##e#*# 17

CONCLUSION eeeereeeeeteenreseeeeeeeteeeee#et#e#e#ete 24

CASES CITED

423 S. Salina Street v. City of Syracuse,

68 N.Y.2d 474;

510 N.Y.S.2d 507, 503 N.E.2d 63

(N.Y. 1986), appeal dismissed,

107 S. Ct. 1880 (1987) ......... 13

- iii -

Allen v. McCurry,

449 U.S. 90 (1980) wccccccccee 6, 7

Board of Regents v. Tomanio,

S66 U.8. GIS CASSG) ceccesecsesees Aj

Brown v. United States,

742 F.2d 1498 (D.C. Cir. 1984),

cert. denied,

S7h Gebe B67e CAPES) cococcose he 3

Brown v. Western Railway of Alabama,

338 U.S. 294 (1949) ccccccccccee IAS

Cardo v. Lakeland Cent. School Dist.,

592 F. Supp. 765

(S.D. N.Y. 1984) eeeeeeeeeeeeeee 12

Chardon v. Soto,

462 U.S. 650 (1983) oeeeeeeeeeeee i)

Doe v. Ellis,

103 Wis. 2d 581, 309 N.W.2d 375

TSC. Bee BOGR) cccnccccccsescsee JG

El Paso & N. E. R. Co. v. Gutierrez,

215 U.S. 87 (1909) ose eeeeeeeeenee 19

Erie R. Co. v. Tompkins,

3064 UB. 66 (32938) ccccccccsse Se

Figgs v. City of Milwaukee,

121 Wis. 2d 44,

357 N.W.2d 548 (1984) ...... 15, 16

Garcia v. San Antonio Metro. Transit

Authority,

469 U.S. 528 (1985) oeeeveeveeeeeene 5

Garrett v. Moore-McCormack Co.,

317 U.S. 239 (1942) ccccosess 17-18

Gumz v. Morrissette,

772 F.2d 1395 (7th Cir. 1985),

cert. denied,

106 S. Ct. 1644 (1986) «2.222525 17

Gutter v. Seamandel,

103 Wis. 2d l,

308 N.W.2d 403 (1981) .w.ceeeeeee 13

Hudson v. Palmer,

468 U.S. 517 (1984) .cccoees 16, 17

Imbler v. Pachtman,

424 U.S. 409 (1976) eevee eeeeeee 15

Indiana Dept. of Public

Welfare v. Clark,

478 N.E.2d 699

(Ind. Ct. App. 1985),

cert. denied

106 S. St. 2893 (1986) .......-. 13

Johnson v. Railway Express Agency,

421 U.S. 454 (1975) wecccccsee 6, 9

Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982) ..ceeeeeeeee 17

Maine v. Thiboutot,

446 U.B. 1 (1960) cecccccece 0, 21

Mills v. County of Monroe,

59 N.Y.2d 307,

464 N.Y.S.2d 709,

451 N.E.2d 456 (N.Y. Ct. App.),

cert. denied, 464 U.S. 1018

(2063) ccccccccccscceccccess AS, 14

Minneapolis & St. L. R. Co. v. Bombolis,

SOS GUeB. SEA (IU9AG) ccccsscceses 49

Mitchum v. Foster,

407 U.S. 225 (1972) eevee eeeeenee 12

Monroe v. Pape,

365 U.S. 167 (1961) .wcccceeee 8, 12

Parratt v. Taylor,

G3 G.B. S27 (39GL) ccocccoeee 16, 2

Parson Steel, Inc. v. First Alabama Bank,

474 U.S. 518,

106 S. Ct. 768 (1986) ........4. 6-7

Patsy v. Florida Board of Regents,

457 U.S. 496 (1982) ...... 5, 8, 23

Patterman v. Whitewater,

32 Wis. 2d 350,

B63 Bo.W. a8 FOS (31966) cccccccsee 3

Pennzoil Co. v. Texaco, Inc.,

Ber Ge Gh. Beew CEOSTD cocecceoces 4

Pierson v. Ray,

386 U.S. 547 (1967) w.nccccceeee 14

Quern v. Jordan,

S68 B.8s Be CASTS) cocccceesseoe 22

Robertson v. Wegmann,

436 U.S. 584 (1978) ....... 6, 9, ll

Thompson v. Village of Hales Corners,

115 Wis. 2d 289,

340 N.W.2d 704 (1983) .....22664. 20

Wilson v. Garcia,

471 U.S. 261

(1985) sensenetieeee#see#se« 8, 9, 12, 15, 22

- vio-

STATUTES AND RULES CITED

Sec. 895.46 eeeeveveeeeeweeeeveeeenereeeeeeee 14

OTHER AUTHORITIES

28 U.S.C. 3 1652 (1966) oeeeeeeweneneneeee Y

42 U.S.C. § 1983 (1981)..... 2, 3, 4, %,

7, 8, 9, 10, 11, 13, 14,

15, 16, 17, 20, 21, 22, 23,

42 U.S.C. 5 1988 (1981) .. 8, 10, 20, 21

Eisenberg, State Law in Federal Civil

Rights Cases: The Proper Scope of

Section 1988, 128 U. Pa. L. Rev.

499 (January 1980) .....2eeeee-- 10

INTEREST OF THE AMICI CURIAE

The states are interested in the

outcome of this case for two principal

reasons. First, as sovereign states they

have an interest in allocating their

judicial resources, and in controlling

the conditions under which their courts

can be used, to the fullest extent

consistent with the Constitution.

Second, the majority reguire a notice as

a condition precedent to an action

against the states, municipalities, or

other political subdivisions, and their

officers, agents, and employes. The

ubiguity of state reliance on these

notice statutes in part led Congress to

adopt one for the District of Columbia.

See Brown v. United States, 742 F.2d

1496, 1514 (D.C. Cis. 1966) (Bork, J.,

dissenting), cert. denied, 471 U.S. 1073

(1985).

This case threatens the states’

control over the management of their

courts. The states support the

respondents.

SUMMARY OF ARGUMENT

Federalism requires use of state

laws, if not inconsistent with federal

policy, including state laws regarding

procedures in state courts.

This principle applies to actions

under 42 U.S.C. § 1983 (1981). For

example, preclusion and abstention

principles apply to § 1983 actions out of

deference to state rules and state

courts. Congress instructed federal

courts to borrow from state law in 5 1983

actions.

By enacting § 1983 Congress meant to

supplement state remedies, not to

supplant state court procedures.

A notice rule is not inconsistent

with federal j3 1983 policies. Those

policies are to compensate victims whose

federal rights are violated, to deter

wrongdoers, and to provide a supplemental

federal remedy. Requiring a notice does

not itself disturb the substantive rights

to be compensated and to enjoin further

wrongdoing. And the plaintiff remains

free to choose the supplemental federal

forum.

The public benefits by the

Opportunity for early investigation and

resolution. The plaintiff benefits by

the opportunity for resolution and by a

defendant made collectible by the state's

indemnity program.

The notice statute applies to any

lawsuit. It is neutral as between state

and federal interests.

Since the notice requirement

comports with procedural due process for

purposes of having an adequate post-

deprivation remedy, it obviously is not

inconsistent with § 1983's policy to

remedy procedural due process violations.

ARGUMENT

IT DOES NOT VIOLATE FEDERAL

POLICY FOR A STATE TO APPLY ITS

NOTICE OF CLAIM STATUTE AS A

CONDITION PRECEDENT TO SUIT IN

STATE COURT ACTIONS BROUGHT

UNDER 42 U.S.C. § 1983.

A. Federalism requires’ the

use of state law if not

inconsistent with federal

policies.

Federalism requires deference to the

State legislatures. State law must be

followed, except as otherwise provided by

the Constitution or Congress. “(T]he law

to be applied in any case is the law of

the state," absent such exception. Erie

R. Co. v. Tompkins, 304 U.S. 64, 78

(1937).

This principle of federalism is

embedded in the tenth amendment. The

states retain all attributes of

sovereignty, except those the

Constitution transfers to the federal

government. Garcia v. San Antonio Metro.

Transit Authority, 469 U.S. 528, 549

(1985). While the Constitution vests in

Congress the power to prescribe the basic

procedural scheme under which claims may

be heard in federal courts, Patsy v.

Florida Board of Regents, 457 U.S. 496,

5901 (1982), it reserves to the states the

power to prescribe the procedural scheme

in state courts. To override this state

prerogative "is an invasion of the

authority of the state and, to that

extent, a denial of its independence.”

Erie R. Co. v. Tompkins, 304 U.S. at 79.

This principle of federalism

controls j 1983 actions. There is

nothing “peculiar to a federal civil

rights action that would justify special

reluctance in applying’ state law."

Johnson v. Railway Express Agency, 421

U.S. 454, 464 (1975). It does not matter

that 3 1983 is a uniquely’ federal

remedy: the plaintiff may not continue

‘an action in disregard of state law.

Robertson v. Wegmann, 436 U.S. 584, 593

(1978). To illustrate, despite the

supplemental nature of a 5 1983 action,

state court decisions are entitled to

collateral estoppel and res judicata

effect in federal courts, even where a

State court erroneously interprets the

Constitution. Allen v. McCurry, 449 U.S.

90, 89-99, 101 (1980). See also Parson

Steel Inc. v. First Alabama Bank, 474

U.S. 518, 106 S. Ct. 768 (1986) (federal

court cannot enjoin state proceeding even

if state court misunderstands preclusive

effect of federal court decision).

Similarly, in abstention law, federalism

disfavors interfering with state court

judgments because of a state's keen

interest in protecting the integrity of

its judicial system. Pennzoil Co. vy.

Texaco, Inc., 107 S. Ct. 1519 (1987).

Congress did not intend 35 1983 to

displace state authority over its

courts. Congress was adding to the

jurisdiction of federal courts; it was

not subtracting from state courts’

jurisdiction. Allen v. McCurry, 449 U.S.

90, 99 (1980). In fact, Congress had

given up trusting the states to protect

constitutional rights: 3 1983 was

intended to supplement, and be

independent of, state remedies, if any. instructs [federal courts] to refer to

See Wilson v. Garcia, 471 U.S. 261, 279 State statutes” when federal law provides

(1985); Patsy v. Florida Board of no rule of decision for actions brought

Regents, 457 U.S. 496, 503, 505-06 under 3 1983. Robertson v. Wegmann, 436

(1982); Monroe v. Pape, 365 U.S. 167, 173 U.S. 584, 593 (1978). See also Wilson v.

(1961). Section 1983, then, was anything Garcia, 471 U.S. 261, 266 (1985) (statute

but an attempt by Congress to control the of limitations); Johnson _v. Railway

operation of state courts. Express Agency, 421 U.S. 454, 464 (1975)

In fact, Congress subordinated (statute of limitations); Chardon v.

3 1983 actions to this principle of Soto, 462 U.S. 650, 657 (1983)

federalism by enacting 42 U.S.C. § 1988 (commencement of limitations period).

(1981),+ whereby Congress "guite clearly See generally 28 U.S.C. § 1652 (1966)

(Rules of Decision Act).

lsection 1988 provides: Petitioner asserts there is no

The jurisdiction in civil federal “deficiency” for a notice rule to

and criminal matters conferred

on the district courts ...

shall be exercised and enforced modified and changed by the

in conformity with the laws of constitution and statutes of

the United States, so far as the State wherein the court

such laws are suitable to carry having jurisdiction of such

the same into effect; but in Civil or criminal cause is

all cases where they are not held, so far as the same is not

adapted to the object, or are inconsistent with the

deficient in the provisions Constitution and laws of the

necessary to furnish suitable United States, shall be

remedies and punish offenses extended to and govern the said

against law, the common law, as courts. ...

(Footnote Continued)

- 10 «-

fill. Even if petitioner is correct, but

see Brown v. United States, 742 F.2d

1498, 1512-14 (D.C. Cir. 1984) (Bork, J.,

dissenting), a state's interest in

managing its court system still must be

weighed against any competing federal

interest. Petitioner might be correct if

the question presented concerned whether

federal courts must follow the state's

notice rule. But it is an entirely

different question, and the only one

presented here, whether state courts may

follow the state's notice rule.

Therefore, it is less significant whether

a state notice rule fills a j§ 1988

"deficiency" than to appreciate j 1988's

call to federalism in § 1983 actions.

See Eisenberg, State Law in Federal Civil

Rights Cases: The Proper Scope of

Section 1988, 128 U. Pa. L. Rev. 499, 542

n.142 (January 1980).

= il «

State court rules must yield only

when “‘inconsistent with the Constitution

and laws of the United States.'"

Robertson v. Wegmann, 436 U.S. 584, 588

(1978). If not inconsistent, state rules

are incorporated into federal law. Board

of Regents v. Tomanio, 446 U.S. 478, 487

(1980). "A state statute cannot be

considered ‘inconsistent’ with federal

law merely because the statute causes a

plaintiff to lose the litigation."

Robertson v. Wegmann, 436 U.S. at 593.

B. The notice rule is not

inconsistent with the

federal policies.

The principal policies embodied in

3 1983 are deterrence and compensation.

Board of Regents v. Tomanio, 446 U.S.

478, 488 (1980). Congress meant to

ensure that individuals whose federal

rights are violated may recover damages

- 12 -

or secure injunctive relief. See Mitchum

v. Foster, 407 U.S. 225, 239 (1972).

Congress also intended to provide a

remedy that is supplemental and

independently enforceable in federal

court, whether or not it duplicates a

parallel state remedy. Wilson v. Garcia,

471 U.S. 261, 279 (1985), citing Monroe

v. Pape, 365 U.S. 167, 173 (1961).

The notice rule is not inconsistent

with the policies of compensation and

deterrence. Plaintiffs can still readily

enforce their claims, thereby recovering

compensation and fostering deterrence,

simply by giving notice of their claim.

See Cardo v. Lakeland Cent. School Dist.,

592 F. Supp. 765, 773 (S.D. N.Y. 1984).

Obviously, the notice requirement for

state court does not burden the

plaintiff's choice of federal court.

‘

° 13 «

There is a public benefit. Notice

"afford([s]} the municipality an

opportunity to compromise the claim and

settle it without a costly and expensive

lawsuit." Gutter v. Seamandel, 103 Wis.

2d 1, 9, 308 N.W.2d 403 (1981); Patterman

v. Whitewater, 32 Wis. 2d 350, 145 N.W.2d

705 (1966). Accord, Indiana Dept. of

Public Welfare v. Clark, 478 N.E.2d 699,

702-03 (Ind. Ct. App. 1985), cert. denied

106 S. Ct. 2893 (1986); Mills v. County

of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d

709, 451 N.E.2d 456, 458 (N.Y. Ct. App.),

cert. denied, 464 U.S. 1018 (1983). See

also 423 S. Salina Street v. City of

Syracuse, 68 N.Y.2d 474; 510 N.Y.S.2d

507, 503 N.E.2d 63 (N.Y. 1986), appeal

dismissed, 107 S. Ct. 1880 (1987)

(upholding the notice of claim

requirement in a state court action

brought under 5 1983). Early resolution

° 14 <-

of claims benefits both the claimant and

the state. These public purposes are not

"antithetical to the policy underlying

the civil rights laws.” Mills v. County

- 15 -

future course of constitutional law, from

being “mulcted in damages”). See also,

Imbler v. Pachtman, 424 U.S. 409, 423-24

of Monroe, 451 N.E.2d at 457.

Giving notice can also advance the

objectives of civil rights law.

Wisconsin, for example, provides a

collectible defendant through the

indemnity statute which is the guid pro

guo for notice. See sec. 895.46, Wis.

Stats; Doe v. Ellis, 103 Wis. 2d 58l,

589, 309 N.W.2d 375, 378 (Ct. App.

1981). This Court already has approved

as consistent with j3 1983 policies the

policy to spare the pvblic employe from

the worry of ‘ personal loss that these

indemnity programs serve. See, ¢€.g9.,

Pierson v. Ray, 386 U.S. 547, 555 (1967)

(good faith immunity defense saves the

police officer, who cannot predict the

(1976) (prosecutors have absolute

immunity to assure that their decision-

making is unimpaired by the threat of

civil suit, despite the broad remedial

purposes of 3 1983). Finally, the notice

rule advances civil rights objectives by

enabling the public employer to take

prompt remedial action, such as by

removing offending employes, repairing

procedural flaws, etc.

Moreover, the notice rule meets this

Court's concern that a state rule not

discriminate against federal claims. See

Wilson v. Garcia, 471 U.S. 261, 269

(1985). The statute applies to any cause

of action, state or federal. Cf. Figgs

v. City of Milwaukee, 121 Wis. 2d 44, 52,

- 16 -

357 N.W.2d 548 (1984) ("any cause of

action").

Since the notice statute meets

procedural due process standards, it

cannot be inconsistent with § 1983, whose

purpose is to protect against due process

violations. A 5 1983 action will not lie

for a due process violation, if the state

provides meaningful post-deprivation

relief. Hudson v. Palmer, 468 U.S. 517,

533 (1984). A state's post-deprivation

remedy is adequate even if (a) it

provides only for an action against the

state as opposed to individuals; (b) it

does not allow for punitive damages; and

(c) there is no right to a trial by

jury. Parratt v. Taylor, 451 U.S. 527,

543-44 (1981). Obviously the notice

Statute would not make the remedial

scheme inadequate. Por the state may

impose reasonable procedural requirements

- 17 «

so long as the opportunity to sue is

meaningful, Logan v. Zimmerman Brush Co.,

455 U.S. 422, 437 (1982), and Wisconsin's

notice statute meets this standard. See

Gumz v. Morrissette, 772 F.2d 1395, 1404

(7th Cir. 1985), cert. denied, 106 S. Ct.

1644 (1986). It would be strange if the

notice statute comports with fourteenth

amendment due process for Hudson v.

Palmer purposes but is inconsistent with

3 1983 generally.

Ce Petitioner's cases are

inapposite.

Notwithstanding the tenth amendment,

petitioner avers, Congress can override

State procedural rules. Amici concede

the point arguendo. In each of the

examples petitioner cites, however, this

Court located a conilict between state

and federal rules. For example, in

Garrett v. Moore-McCormack Co., 317 U.S.

- 18 -

239 (1942), state policy on burden of

proof had to yield to a contrary federal

rule. Similarly, the state rule of

pleading struck in Brown v. Western

Railway of Alabama, 338 U.S. 294 (1949),

encroached on a substantive federal

right.

Thus, one can agree with petitioner

that a state procedural rule is not ipso

facto insulated from the supremacy of a

conflicting federal policy, but still

prevail on the argument that petitioner

has failed to show any conflict here.

Surely, there is no inherent

inconsistency between the right to sve

over a federal claim and the duty to give

notice beforehand.

Even petitioner agrees that,

generally speaking, state court rvles of

procedure and evidence apply to federal

Claims (petitioner's brief at 35-36).

© 19 «-

Petitioner then explains away the rule of

Minneapolis & St. L. R. Co. v. Bombolis,

241 U.S. 211 (1916), that upheld a state

rule permitting non-unanimous jury

verdicts, as having turned on

congressional intent in that situation

(petitioner's brief at 18 n.13).

Exactly! Here, there is no evidence of

congressionai intent to supplant state

court notice rules: not a scintilla.

Petitioner's reliance on El Paso &

N. EB. R. Co. v. Gutierrez, 215 U.S. 87

(1909), turns on itself. This Court held

that Congress’ exercise of plenary

control over the territories superceded a

local notice rule. But thdt case did not

involve the prerogatives of sovereign

States. Indeed, even as to territories,

this Court said a notice statute

ordinarily would apply to ae federal

Claim, absent a congressional override.

° 20 -

215 U.S. at 92-93, 96-97. Here, there is

no congressional override.

Petitioner also errs in relying on

Maine v. Thiboutot, 448 U.S. 1, Ill

(1980), wherein this Court held that

attorney's fees are equally available in

state courts lest Claimants face

financial disincentives in state

courts. Here, however, a § 1983 claimant

does not face a financial disincentive,

for 5 1988 attorney's fees are

recoverable and there are no recovery

limits. Thompson _v. Village of Hales

Corners, 115 Wis. 2d 289, 298, 309, 340

N.W.2d 704 (1983). Besides, it is not

essential that plaintiff's state remedies

be identical to the j5 1983 federal

remedies. See Parratt v. Taylor, 451

U.S. 527, 544 (1981).

Petitioner also misreads Maine v.

Thiboutot as to federalism, suggesting

- 21 -

that since there is no notice rule in

federal courts there can be none in state

courts lest plaintiffs opt for federal

courts. Maine v. Thiboutot, however, was

concerned only to avoid a rule that would

chase plaintiffs away from state

courts. Hence, 3 1988 attorney's fees

had to be regarded as integral to any

53 1983 suit. But that concern for

federalism does not warrant the leap that

either Congress or this Court meant to

invalidate state court notice rules. In

fact, it turns federalism on its head to

Strike state court rules in state court

actions. If they are to be struck, the

source is the Constitution or an act of

Congress, not the doctrine of federalism.

Petitioner contends that the notice

Statute is but a form of sovereign

immunity, thereby inconsistent with

3 1983 policies. To the contrary. Even

- 22 -

if the notice statute is a form of

immunity, nothing in § 1983 was intended

to overcome a sovereign’s immunity as

enshrined in the eleventh amendment.

Quern _v. Jordan, 440 U.S. 332, 345

(1979). Moreover, a notice rule is no

more a form of immunity than is a statute

of limitations: if complied with the

plaintiff may proceed against the

defendant; if not complied with the

plaintiff may not proceed whether or not

the defendant otherwise is immune.

Nothing in Wilson v. Garcia, 471

U.S. 261 (1985), invalidates Wisconsin's

rule of decision. The Court adopted

personal injury statutes of limitations

for § 1983 actions, abjuring statutes for

actions against public officials. In

doing so, however, the Court focused on

the intent of Congress and the nature of

al

a 3 1983 action in picking the closest

- 23-

state analogue; the Court was-~ not

ascribing to Congress the intent to upset

federalism's deferral to the states in

choosing procedures for their courts.

Lastly, the petitioner's reliance on

Patsy v. Florida Board of Regents, 457

U.S. 496 (1982), is inapposite.

Immediate access to courts is no more

imperilled by a notice rule than by a

filing fee.

» 24 «

CONCLUS ION

It is respectfully submitted that

the judgment should be affirmed.

DONALD J. HANAWAY

Attorney General of Wisconsin

CHARLES D. HOORNSTRA

Assistant Attorney General

of Wisconsin

Counsel of Record

ARLEEN E. MICHOR

Assistant Attorney General

Of Wisconsin

Attorneys for the Amici States

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-9231