# Amicus Curiae Brief — Felder v. Casey

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0581%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 131

## Text

Suoreme Court US
FILiD

‘an 20 1588

Case No, ieee | JOSEPH F

c

Ch ANIOL, JR

218

-_—

I

_—
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0581%3A08. Public record. Not legal advice.