Amicus Curiae Brief — Will v. Michigan Department of State Police

* 4h ED

_ JOSEPH & «

No. 87-1207 a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

Ray WILL,

Petitioner,

Vv.

MICHIGAN DEPARTMENT OF STATE POLICE AND

DIRECTOR OF MICHIGAN STATE POLICE,

Respondents.

On Writ of Certiorari to the

Supreme Court of Michigan

BRIEF OF THE

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

COUNCIL OF STATE GOVERNMENTS,

U.S. CONFERENCE OF MAYORS, AND

NATIONAL CONFERENCE OF STATE LEGISLATURES

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

KENNETH S. GELLER BENNA RUTH SOLOMON

ANDREW J. PINCUS Chief Counsel

MAYER, BROWN & PLATT STATE AND LOCAL LEGAL

2000 Pennsylvania Ave., N.W. CENTER

Washington, D.C. 20006 444 N. Capitol St., N.W.

(202) 463-2000 Suite 349

Of Counsel Washington, D.C. 20001

(202) 638-1445

Counsel of Record for the

Amici Curiae

WiLeon - Eres Printing Co... Inc. - 769-0096 - Wasnineron, 0. C. 20001

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le ei i

QUESTION PRESENTED

Whether a State is a “person” subject to liability for

money damages under 42 U.S.C. 1983.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED .............. —

TABLE OF AUTHORITIES ..........00.000000000000000000....

INTEREST OF THE AMICI CURIAE.......... |

TE

INTRODUCTION AND SUMMARY OF ARGU-

ARGUMENT ..

THE STATE OF MICHIGAN IS NOT A “PER-

SON” SUBJECT TO LIABILITY UNDER SEC-

TE

A. iitiinn | Must Clearly Indicate Its Intent To

Subject The States To Damages Liability Under

Federal Law And It Has Not Done So Here

B. Congress Did Not Intend To Subject The States

To Liability Under Section 1983 .....

1. The language and legislative history of Sec-

tion 1983 show that Congress did not intend

to impose liability on the States a

2. Congress’s intent not to override common-

law immunities in enacting Section 1983

confirms that the States are not — to

damages liability .

3. Given the purposes of Section 1983, iiaiaes

would not have imposed liability upon the

States while at the same time barring ac-

tions against the States in federal court _

4. Policy arguments do not justify a broad ex-

pansion of Section 1983 liability

C. Petitioner Cannot Circumvent Congress’s De- -

cision To Exclude The States From Liability

Under Section 1983 By Bringing An Official-

Capacity Suit Against State Officials

Te ecetreesennecdeneccsnsenssercsrecensecesesenes

Page

i

iv

16

23

26

30

iv

TABLE OF AUTHORITIES

CASES: Page

Atascadero State Hospital v. Scanlon, 473 U.S. 234

SOUTETEIED weecnncnsceneeimitneisssentinsinaiisisesiabaantaiaaniiiduiiuaste slbaoeiiada 10, 11, 14

Beers v. Arkansas, 61 U.S. (20 How.) 527 (1857).. 23

Bethesda Hospital Ass'n v. Bowen, 108 S. Ct. 1255

TEEIETIED cunsnennnnstinsesiesstuipeieeniiataentipatenidneasigeieeniaiiabiataies 6

Brandon v. Holt, 469 U.S. 464 (1985) 2000000. 28

Briscoe v. LaHue, 460 U.S. 325 (1983) 20000000000. 22

California v. Taylor, 353 U.S. 553 (1957) ...... meet 12

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

ff eae ener ee 22

Collins v. Hardyman, 341 U.S. 651 (1951) ........... 17-18

Community Communications Co. v. City of Boulder,

3 OF YL 10

Coyle v. Oklahoma, 221 U.S. 559 (1911) ............. 9

Davis v. Scherer, 468 U.S. 183 (1984) 200... 26

District of Columbia v. Carter, 409 U.S. 418

SEETEEEED | scscieqsutesstetieiindeiniaitemmninantieniiaiead adden giinecadtadbiehinne 27

Dugan v. Rank, 372 U.S. 609 (1963) 00000. 29

Employees v. Missouri Dep’t of Public Health, 411

eee eee eT 14

Ex Parte Young, 209 U.S. 123 (1908) ..00000....) Ss 8, 29

Felder v. Casey, No. 87-526 (June 22, 1988) —........ 24

Garcia v. San Antonio Metropolitan Transit Au-

thority, 469 U.S. 528 (1985) 00. 9

Georgia v. Evans, 316 U.S. 159 (1942) 000000... ; 16

Harlow v. Fitzgerald, 457 U.S. 800 (1982)... _ 26, 28

Hutto v. Finney, 437 U.S. 678 (1978) ............... 29, 30

Imbler v. Pachtman, 424 U.S. 409 (1976) ........... 22, 26

Jones v. Rath Packing Co., 430 U.S. 519 (1977) ..... 11

Karcher v. May, 108 §. Ct. 388 (1987)... 7, 28

Kentucky v. Graham, 473 U.S. 159 (1985) ........ 28, 29-30

Laborers Health & Welfare Trust Fund v. Advance

Lightweight Concrete Co., 108 8. Ct. 830 (1988)... 26

Lake Country Estates v. Tahoe Regional Planning

Agency, 440 U.S. 391 (1979) ................0.-.00........... x

Lane County v. Oregon, 74 U.S. (7 Wall.) 71

(1868) . 9

Louisiana Public Service Comm'n nv. . FCC, ‘476 U. s.

355 (1986) ......... . 10

Vv

TABLE OF AUTHORITIES—Continued

Page

Maine v. Thiboutot, 448 U.S. 1 (1980) 0 x

Martinez v. California, 444 U.S. 277 (1980) _....... 8, 25

Mitchum v. Foster, 407 U.S. 225 (1972) 0.000000... 24

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

fA ee ae Se 17, 18, 26, 28

Nichols v. United States, 74 U.S. (7 Wall.) 122

a 23

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

ITITTIIED - cosrinacsconsnniiidubeneubieddinstenmtianiesentuinatetiatasiialastsintsatiaasses 22

Parden v. Terminal Ry., 377 U.S. 184 (1964) _.... 12

Patsy v. Board of Regents, 457 U.S. 496 (1982)... 24

Pennhurst State School & Hospital v. Halderman,

§ Sf £_ ese 10, 11

Pennhurst State School & Hospital v. Halderman,

I 10, 29

Petty v. Tennessee-Missouri Bridge Comm'n, 359

Ce cnteeniccsinritiennntaitinaieerstitientianias 12

Pierson v. Ray, 386 U.S. 547 (1967) 0. 22

Quern v. Jordan, 440 U.S. 332 (1979) passim

Railroad Co. v. Tennessee, 101 U.S. (11 Otto) 337

TET rscshaideehehcieceadebatueahatitiendeaketintapbieiaieabddiiesimindiichiateniain 23

Rice v. Santa Fe Elevator Corp., 331 US. 218

(1947) .. -™ sinliandaithdais 10

Scheuer v. Rhodes, 116 US. 232, (1974) | 1B RE 22

South Dakota v. Dole, 107 S. Ct. 2793 (1987) 10

Stanley v. Schwalby, 147 U.S. 508 (1893)... 16

Stump v. Svarkman, 435 U.S. 349 (1978). 22

Tenney v. Brandhove, 341 U.S. 367 (1951). 22

The Siren, 74 U.S. (7 Wall.) 152 (1869)... 23

United Savings Ass'n v. Timbers of Inwood Forest

Assocs., 108 S. Ct. 626 (1988) 0 6,15

United States v. Bass, 404 U.S. 336 (1971) __. 10, 11

United States v. California, 297 U.S. 175 (1936)... 12

United States v. Cooper Corp., 312 U.S. 600

ne ee TT 16

United States v. Knight, 39 U.S. 301 (1840) __. 16

Welch v. Texas Dep't of Highways, 107 S. Ct. 2941

SEAT TLR IE - 10, 13, 14

Wilson v. Omaha Indian Tribe, 142 U.S. 653

STII ieincitasiasttitaineiecans ineetea ements tataetelisea ial nimi 12, 13, 16

vii

vi

TABLE OF AUTHORITIES—Continued TABLE OF AUTHORITIES—Continued

ea eee AND RULES: Page 8, 35, 95th Cong., ist Sess. (1977) __...

U.S. Constitution : S. 1983, 96th Cong., Ist Sess. (1979)

Article I | S. 990, 97th Cong., Ist Sess. (1981) 0

Leste RPE ERED OMEN 9 Sagafi-Nejad, Proposed Amendments to Section

| eee aS ae 9 1983 Introduced in the Senate, 27 St. Louis

ieee 9 U.L.J. 373 (1983) .

Steinglass, The Emerging State Court $1983 yr

Article II, § 3 seensenmmnememeepmmnanenaten 9 tion: A Procedural Review, 38 U. Miami L. Rev.

Article IV, § 3 psqucecsdncusbencessceseseenesesse 9 881 an ESS Sad ae aa

AME TVG 4 ners Wolcher, Sovereign immunity end the Supremacy

he PNPREAT YS 9 Clause, 69 Calif. L. Rev. 189 (1981) ......... eee

IIIT ccs otis tisiicieimpnemnsenemmeanmactancaiibaneaiaiibacianl passim

on oe 10, 11, 20, 21, 29

Civil Rights Act of 1871, § 1,17 Stat. 13 _ 17, 18, 19, 20, 24

Civil Rights Act of 1866, § 2,14 Stat.27 .......... 17, 21

Pub. L. No. 96-170, 93 Stat. 1284 (1979)... 27

22 U.S.C. 1331........ RAs ann ve tena we 14

I ee ae, 14

42 U.S.C. 1983 ......... jana aaa

42 U.S.C. 1988... SEO SUE revee Uae es ey 30

Fed. R. Civ. P.25 7 : pe peas a eee 30

MISCELLANEOUS:

Cong. Globe, 42d Cong., Ist Sess. (1871) 18, 19, 20, 21, 24

J. Dillon, Treatise on the Law of Municipal Corpo-

I 23

Engdahl, Immunity and Accountability for Positive

Governmental Wrongs, 44 U. Colo. L. Rev. 1

(1972) . 23

F. Harper, F. James & 0. Gray, The Lew of Torts

Se 23

Nichol, Federalism, State Courts, end Section 1983,

73 Va. L. Rev. 959 (1987) .............00. nn... 24

Nowak, The Scope of Conqressional Power to

Create Causes of Action Against State Govern-

ment and the History of the Eleventh and Fowr-

teenth Amendments, 75 Colum. L. Rev. 1413

SESETITED sxvcncisnivencetuanicipastbneentinsidettieenbininbabenastnbiiiamaneininetiamabiamians 18

$35

In THE

Supreme Court of the united States

OCTOBER TERM, 1988

No. 87-1207

Ray WILL,

V.

MICHIGAN DEPARTMENT OF STATE POLICE AND

DIRECTOR OF MICHIGAN STATE POLICE,

Respondents.

On Writ of Certiorari to the

Supreme Court of Michigan

Petitioner,

BRIEF OF THE

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

COUNCIL OF STATE GOVERNMENTS,

U.S. CONFERENCE OF MAYORS, AND

NATIONAL CONFERENCE OF STATE LEGISLATURFS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

The amici, organizations whose members include state.

county, and municipal governments and officials through-

out the United States, have a compelling interest in legal

issues that affect state and local governments.

The issue of statutory interpretation presented in this

case—whether a State is a “person” within the meanine

of 42 U.S.C. 1983—has obvious importance for state

governments. This Court has never directly considered

that question because, until recently, actions under Sec-

tion 1983 were generally instituted in the federal courts,

where the Eleventh Amendment bars an action against

a State under Section 1983. See Quern v. Jordan, 440

2

U.S. 332 (1979). The Eleventh Amendment is, of course.

unavailable as a defense in state court.

The court below correctly concluded that Congress did

not intend to subject the States to damages liability un-

der Section 1983. Because this Court’s decision will have

a direct effect on matters of substantial importance to

amici and their members, amici submit this brief to

assist the Court in its resolution of the case.’

STATEMENT

1. Petitioner Ray Will became an employee of the

State of Michigan in 1969. Four years later, petitioner

applied for promotion to a position as a data system

analyst with the Department of State Police. The police

department ran a security check on petitioner, which

turned up information about petitioner’s brother, Charles

Will, who had received extensive publicity for his anti-

war activities and liberal political views during 1970 and

1971.* Petitioner was not promoted by the police depart-

ment; he subsequently obtained an equivalent position

with the state highway department. Pet. App. lla:

J.A. 35-36.

Petitioner did not learn that the police department's

security check had uncovered information about his

brother’s political activities until 1977, when petitioner's

brother obtained a copy of his police file. Petitioner filed

a grievance with the state Civil Service Commission.

asserting that the decision to deny him the promotion had

impermissibly been influenced by his brother's political

activities. The grievance was denied as untimely. Peti-

tioner then commenced an action in Michigan circuit

' The parties’ letters of consent. pursuant to Rule 26 of the Rules

of this Court, have been filed with the Clerk.

* Charles Will's police file was one of a number of such files main-

tained by the Special Investigation Unit of the Michigan Department

of State Police. The Michigan state courts subsequently held that

maintenance of these files on individuals’ domestic political activi-

“ was unconstitutional. Pet. App. Ila; Pet. Br. App. la-Ba; J.A.

73.

3

court against the state Department of Civil Service, the

state personnel director, the Department of State Police,

and the director of state police, alleging violations of the

United States Constitution and the Michigan Constitu-

tion. He sought damages under both 42 U.S.C. 1983 and

state law. The court remanded the case to the state Civil

Service Commission for a grievance hearing. Pet. App.

lla-12a; J.A. 13-14.

The Civil Service Commission hearing officer held that

the State had violated both the state constitution and

state civil service rules. J.A. 34-48. He found that peti-

tioner had established a “prima facie case of partisan

considerations involved in the selection process” and that

the police department had failed to rebut petitioner's

showing that his brother's political activities were a sub-

stantial factor in the decision to deny petitioner the

promotion. J.A. 45-47. The hearing officer awarded

petitioner damages of approximately $200—the amount

of salary he found that petitioner had lost as a result of

the police department's employment decision. J.A. 47-48,

60. The Commission affirmed the hearing officer’s deter-

mination. J.A. 49-52. Neither the State nor petitioner

sought judicial review of that ruling.

2. In November 1978, while the grievance proceeding

was pending before the state Civil Service Commission,

petitioner filed suit in the Michigan Court of Claims.

His complaint alleged a claim under 42 U.S.C. 1983 es-

sentially identical to the claim asserted in the action

before the state cireuit court. Pet. App. 12a; J.A. 15-23.

The court of claims action was consolidated with the cir-

cuit court ease. J.A. 24-26, 27-30, 31-33.

In 1982, following the Civil Service Commission's deci-

sion, the state circuit court entered judgment in peti-

tioner’s favor on his Section 1983 claim. J.A. 59-67.

The court held that the Commission's ruling established

a federal constitutional! violation because “the State hav-

ing established a system of merit | promotion decisions},

4

* * * the denial of [petitioner’s} promotion based on

|petitioner’s} brother’s political persuasion violates due

process.” J.A. 61. The court also held that the Michi-

gan Department of State Police and its director, sued in

his official capacity, were included within the class of

“person|s|"” subject to damages liability under Section

1983 ‘see J.A. 61-65). Petitioner was awarded damages

of approximately $153,000."

The state court of appeals reversed in part and re-

manded in part. Pet. App. 124a-136a. It concluded that

neither the State itself nor a state official sued in his offi-

cial capacity could be held liable for money damages

under Section 1983. The court remanded the case so that

the circuit court could determine whether the director

of state police was liable for damages in his personal

capacity.

3. The Supreme Court of Michigan affirmed in part

and reversed in part by a divided vote. Pet. App. 3a-

123a. The court first held that the State was not a “per-

son” subject to liability under Section 1983. It observed

that this Court had concluded in Quern v. Jordan, 440

U.S. 332 (1979), that Congress did not abrogate the

States’ Eleventh Amendment immunity when it enacted

Section 1983. The Michigan court stated that, because

Congress adopted Section 1983 in large part “to provide

a remedy in federal, not state courts,” Congress would

not have left the States’ Eleventh Amendment immunity

intact if it had intended to subject the States to any

liability under the statute. Pet. App. 44a. In the

court’s view, Congress would not have chosen to “ ‘enact

a statute creating a remedy for violation of civil rights,

while at the same time precluding private individuals

from bringing actions under the statute against states

5 Only $584.64 of this amount represented lost wages. The bulk

of the damages award was for loss of career opportunities ($40,544),

emotional distress and mental anxiety (856,052), and exemplary

damages ($56,062). J.A. 79.

5

in federal court but permitting such actions against

states in state courts’” (id. at 44a-¢ a (‘citation omit-

ted)).

The Michigan Supreme Court noted that “the circum-

stances surrounding passage of § 1983” also supported

its determination that the States are not subject to

liability under that statute. Pet. App. 45a. Exposing

the States to suits for damages would have been “a con-

troversial proposition in 1871,” but there was very little

debate on the provision that became Section 1983. /bid.

The court concluded that the absence of debate indicated

that Congress did not view Section 1983 as subjecting

the States to damages liability.

Finally, the Michigan Supreme Court rejected peti-

tioner’s argument that Section 1983 authorizes suit

against a state official in his official capacity. It held

that an official-capacity action against a state official

seeking retroactive relief is, in reality, an action against

the State itself. Because a State is not a “person” under

Section 1983, an official-capacity action cannot be main-

tained under the statute. Pet. App. 47a-54a.

Two justices dissented with respect to these issues.

Relying upon Justice Brennan's concurring opinion in

Quern v. Jordan, supra, they concluded that the States

are included within the term “person” in Section 1983

and therefore are subject to liability under the statute.

Pet. App. 117a-120a.*

* The Michigan Supreme Court also resolved a companion case in

which another plaintiff had asserted an action for damages based

on the Michigan Constitution. The court held that “[a) claim for

damages against the state arising from violation of the Michigan

Constitution may be recognized in appropriate cases,” and it re-

manded the case to allow the lower court to consider whether dam-

ages) were appropriate in the circumstances there presented Pet.

App. 9a, 10a; see also id. at 10%a-117a, 122a-123a. Petitioner failed

to preserve a claim for damages for violations of the Michigan

Constitution (see id. at 98a-101a).

INTRODUCTION AND SUMMARY OF ARGUMENT

We agree with petitioner (Br. 9) that the question

presented in this case is solely an issue of statutory con-

struction—whether Congress intended the term “person”

in 42 U.S.C. 1983 to include the States and thereby to

subject them to liability for damages under that statute.

But petitioner and his supporting amici err in assuming

that this is a garden-variety issue of statutory inter-

pretation, to be approached in the same manner as, for

example, ascertaining the meaning of the term “interest

in property” in the Bankruptcy Code (see United Sav-

ings Ass’n v. Timbers of Inwood Forest Assocs., 108 §.

Ct. 626 (1988)), or the jurisdiction of the Provider

Reimbursement Review Board under the Medicare Act

(see Bethesda Hospital Ass'n v. Bowen, 108 S.Ct. 1255

(1988).

This Court has recognized in a variety of contexts that

before a court concludes that Congress has acted to limit

the sovereign authority of the States, it must apply a

legal standard far more rigorous than the test that

governs routine issues of statutory interpretation: the

court must find clear evidence that Congress intended to

burden the States. That strict standard should be ap-

plied in determining whether Congress intended to sub-

ject the States to damages liability under federal law.

Because Congress did not expressly include the States

within the class of persons who may be sued under See-

tion 1983, a damages claim may not be asserted against

a State, a state agency, or a state official sued in his

official capacity.

In any event, even if the routine statutory interpreta-

tion standard were applied to the question here, it is

clear that Section 1983 does not authorize damages ac-

tions against the States. Congress used the term “per-

son” to define the class of defendants subject to liability

under Section 1983. This Court has held that that term

excludes sovereigns such as the Stateg, absent evidence

7

of contrary congressional intent. In this case, the other

evidence of congressional intent is not to the contrary;

it all weighs strongly in favor of construing Section 1983

to exempt the States from liability.

Legislators opposed to the bill that became Section 1983

devoted considerable attention to the intrusions upon

state sovereignty that they believed would result from

adoption of the statute, but no legislator mentioned suits

for money damages against the States. That omission is

strong evidence that Congress did not believe that the

statute would have such an effect. In addition, this Court

has repeatedly held that Congress intended damages li-

ability under Section 1983 to be limited by the common-

law immunities that were well established at the time the

statute was enacted. No immunity was clearer in 1871

than the sovereign’s immunity from suits for damages.

Moreover, Congress's principal reason for adopting Sec-

tion 1983 was to provide citizens with a federal forum

to vindicate their federal constitutional rights. If Con-

gress had intended to create a cause of action against

the States, it undoubtedly would have ensured that such

claims could be brought in federal court. The fact that

Congress did not abrogate the States’ Eleventh Amend-

ment immunity in enacting Section 1983 ‘see Quern rv.

Jordan, 440 U.S. 332 (1979)) confirms that Congress

could not have wanted to subject the States to liability

under the statute.

Finally, there is no basis for petitioner's claim that

a suit against a state official in his official capacity should

be treated as anything other than a suit against the

State. As this Court recently observed, “the real party

in interest in an official-capacity suit is the entity repre-

sented and not the individual officeholder” (Karcher v.

May, 108 S.Ct. 388, 393 (1987)). Petitioner accordingly

cannot use this pleading device to circumvent Congress's

ony exempt the States from liability under Sec-

tion 1

ARGUMENT

THE STATE OF MICHIGAN IS NOT A “PERSON”

SUBJECT TO LIABILITY UNDER SECTION 1985

The Supreme Court of Michigan's conclusion that Sec-

tion 1983 does not impose damages liability upon the

States is correct for two separate reasons. First, because

Congress did not clearly indicate that the States them-

selves were subject to suit under Section 1983. the statute

should not be construed to have that effect. Second, even

without resort to the “clear statement” rule, the outcome

is the same. The statutory language and legislative his-

tory conclusively demonstrate that Congress did not in-

tend to eliminate the States’ sovereign immunity from

damages liability when it enacted Section 1983."

5 Petitioner (Br. 25-27) and his suppertine amici (Br. 10-11 &

nn. 1&21) contend that the Court has already resolved thie state-

tory question in petitioner's favor. This implausible assertion finds

no support in the cases cited by petitioner and amici, none of which

expressly addresses the issue presented here.

Indeed. the cited cases do not even implicitly support petitioner's

contention. In Maine v. Thibewtot, 448 U.S. 1 (1980), and Wertines

© California, 444 US. 277 (1980), the States were not the sole

defendants. state officials also were joined as defendants. either in

their personal capacities on claims for damages or under the prin-

ciple set forth in Ex Parte Young, 209 U.S. 12% (1908), on claims

for injunctive relief. See pages 29-30, infre. Because the Court

could property have entertained both suits even if the States had

heen dismissed as defendants, the Court had no occasion te address

the scope of the term “person” under Section 1983. Petitioner also

relies on the fact that this Court has “debate’d)” (Br. 25) the

States’ ability to waive their Eleventh Amendment immunity with-

out seegesting that. in the event of such a waiver, a Section 19°)

claim would be dismissed for failure to state a claim. The Court's

failure to address the issue one way or the other cannot be read as

an endorsement of petitioner's interpretation of the statute; it

merely indicates that the question is one that the Court has not

reasived. Petitioner cites this Court's decision in Lake Country

Estates » Tabor Regional Plarnine Agency, 440 U.S. 391 (1979),

holding that interstate agencies are subject to suit under Section

198%. but the Court reached that result precisely because such

agencies differed from States (see id. at 400-401).

A. Congress Must Clearly Indicate Its Intent To Subject

To Damages Liability Under Federal Law

F

;

And

1. This Court has repeatedly recognized that the

States occupy a special position in our constitutional sys-

tem. See, ¢.g., Lane County v. Oregon, 74 U.S. (7 Wall.)

71, 76 (1868) (referring to “the necessary existence of

the States, and, within their proper spheres, the inde-

pendent authority of the States”). The federal govern-

ment is limited to the powers specifically delegated to it

by the Constitution; the remaining powers are “reserved

to the States” and to the people (U.S. Const. Amend. X).

Moreover, the Constitution contains a number of limita-

tions upon federal authority designed to protect the sov-

ereignty of the States. See U.S. Const. Art. I, § 8, cl. 16;

Art. I, $9, el. 5; Art. I, $9, el. 6; Art. II, § 3; Art. IV.

€3: Art. IV, §4; Art. V; Amend. XI. And this Court

has held that the Constitution implicitly bars Congress

from exercising its delegated powers in a manner that

infringes impermissibly upon state sovereignty. Coyle v.

Oklahoma, 221 U.S. 559 (1911); see also Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528,

556 (1985) (citing Coyle).

To be sure, the Constitution does not completely in-

sulate the States against the power of the federal govern-

ment; Congress retains considerable authority to enact

legislation that directly or indirectly limits the States’

freedom to choose for themselves the manner in which to

exercise their sovereign authority. But even when there

is no dispute that Congress has the constitutional power

to act in a manner that trenches on state sovereignty,

this Court has recognized that proper respect for the

States’ position in the constitutional scheme demands that

courts take special care in determining whether Congress

chose to exercise that power in a given instance. Thus,

it is well settled that “Congress may abrogate the States’

constitutionally secured immunity from suit in federal

court only by making its intention [to do so) unmistak-

10

ably clear in the language of the statute.” Atascadero

State Hospital v. Scanlon, 473 U.S. 234, 242 (1985);

see also Welch v. Texas Dep't of Highways, 107 §.Ct.

2941, 2946-2947 (1987) (‘plurality opinion) ; Pennhurst

State School & Hospital v. Halderman, 465 U.S. 89, 99

(1984) (Pennhurst II).

The Court has applied a similar rule of statutory con-

struction in determining whether Congress intended to

exercise its power under Section 5 of the Fourteenth

Amendment, stating that a court should “not quickly at-

tribute to Congress an unstated intent to act under its

authority to enforce the Fourteenth Amendment” ( Penn-

hurst State School & Hospital v. Halderman, 451 U.S. 1,

16 (1981) (Pennhurst 1)). The Court has refused to find

that Congress exercised that power absent clear evidence

of congressional intent. /d. at 18. An analogous prin-

ciple applies to congressional action under the Spending

Clause: “if Congress intends to impose a condition on

the grant of federal moneys [to a State], it must do so

unambiguously.” Jd. at 17; see also South Dakota v.

Dole, 107 8.Ct. 2793, 2796 (1987).

Yet another example of this general approach is the

test applied to decide whether Congress intended to pre-

empt state law. The Court “start(s| with the assumption

that the historic police powers of the States were not to

be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.” Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230 (1947) (emphasis

added); see also Louisiana Public Service Comm'n v.

FCC, 476 U.S. 355, 369 (1986). Similarly, in determin-

ing whether Congress intended to exercise the full extent

of its authority under the Commerce Clause, and thereby

limit state authority over the subject of the federal legis-

lation, the Court has consistently required a clear state-

ment of congressional intent. United States v. Bass,

404 U.S. 336, 349 (1971); see also Community Commu-

nications Co. v, City of Boulder, 455 U.S. 40, 53 (1982)

(state action exemption from the antitrust laws is

grounded in deference to state sovereignty ).

11

The Court has based each of these rules of statutory

construction on the importance of according proper re-

spect to the States’ sovereignty and to the constitutional

balance of authority between the federal government and

the States. See Atascadero, 473 U.S. at 242 (Congress’s

power to abrogate the States’ Eleventh Amendment im-

munity “means that in certain circumstances the usual

constitutional balance between the States and the Federal

Government does not obtain”; accordingly, a court must

be certain that Congress intended to exercise that power

before concluding that the States are subject to the

jurisdiction of the federal courts) ; Pennhurst I, 451 U.S.

at 16 (because legislation grounded in Congress’s power

under the Fourteenth Amendment “imposes congressional

policy on a State involuntarily, and because it often in-

trudes on traditional state authority,” there is a special

need to ensure that Congress actually intended that re-

sult); Jones v. Rath Packing Co., 430 U.S. 519, 525

(1977) (rule requiring clear intent to preempt state law

“provides assurance that ‘the federal-state balance’ * * *

will not be disturbed unintentionally by Congress or un-

necessarily by the courts”); United States v. Bass, 404

U.S. at 349 (“In traditionally sensitive areas, such as

legislation affecting the federal balance, the requirement

of clear statement assures that the legislature has in

fact faced, and intended to bring into issue, the critical

matters involved in the judicial decision.” ).

Congress’s power to subject the States to damages

liability under federal law intrudes upon state sover-

eignty in a manner at least as substantial as the federal

actions discussed above. The rule that a sovereign can-

not be sued without its consent surely reflects one of the

most basic attributes of sovereignty. See page 23, infra.

Holding the States liable in damages on a federal cause

of action obviously interferes with this aspect of state

sovereignty. In addition, the monetary burden imposed

upon the States may well interfere with the States’ abil-

ity to accomplish important policy goals. For these rea-

sons, the States should not be subject to liability on a

12

federal cause of action absent clear evidence that Con-

gress intended that result.

Indeed, this Court has already recognized that it is

appropriate to insist upon congressional clarity in this

area. In Wilson v. Omaha Indian Tribe, 442 U.S. 653

(1979), the Court faced the question whether the State

of Iowa was a “white person” within the meaning of

a statute that placed the burden of proof upon white per-

sons in court actions adjudicating rights to property

when an Indian is a party. The Court stated that in

“‘common usage, the term “person” does not include the

sovereign, |and] statutes employing the phrase are ordi-

narily construed to exclude it.’ Particularly is this true

where the statute imposes a burden or limitation, as dis-

tinguished from conferring a benefit or advantage.” 442

U.S. at 667 (citations omitted) ; see also pages 16-17, in-

fra. Wilson states a more general version of the rule for

which we contend here: broad language is not sufficient

to subject the States to damages liability under federal

law. Congress must unambiguously indicate its intent to

subject the States to its authority in order to achieve

that result.*

* Petitioner cites (Br. 24) several cases in which the Court con-

clueed that the States were subject to liability under a federal

statute without requiring clear proof of congressional intent. But

in those cases the Court acknowledged the principle of statutory

construction for which we contend. It simply held that Congress's

plain intent to subject the entire railroad industry to uniform eco-

nomic and safety regulation established with the necessary clarity

that Congress intended to cover state-owned railroads as well as

privately owned railroads. See California v. Taylor, 353 U.S. 552.

562-564 (1957); United States v. California, 297 U.S. 175, 185-186

(1936); see also Parden v. Terminal Ry., 377 U.S. 184, 188-189

(1964) (also relying upon congressional intent to regulate entire

industry); Petty v. Tennessee-Missouri Bridge Comm'n, 259 U.S.

275, 280-282 (1959) (same approach in construing statute relating

to maritime matters). That rationale obviously does not apply here

because the question is not whether the States are to be subject to

the same regulations as private industry; the issue is the definition

13

2. Petitioner argues (Br. 37) that this Court’s deci-

sions under the Eleventh Amendment are irrelevant here

because there is no Eleventh Amendment issue in this

case. Strictiy speaking petitioner is correct: the resolu-

tion of the question whether a particular statute abro-

gates the States’ Eleventh Amendment immunity is not

automatically determinative of the question whether the

statute creates a cause of action against the States. Con-

gress could enact a statute that expressly preserves the

States’ Eleventh Amendment immunity but at the same

time expressly includes the States within the class of

persons subject to liability on the federal claim.

What petitioner ignores, however, is that this Court’s

Eleventh Amendment decisions are relevant in two more

general respects. The first, which we have already dis-

cussed, is that the considerations of federalism under-

lying the rule of statutory interpretation applicable in

the Eleventh Amendment context are equally relevant to

the determination whether Congress intended to subject

the States to damages liability on a federal cause of

action."

of the class of state actors that Congress intended to hold liable

in damages.

Moreover, the decisions cited by petitioner were rendered before

the Court had clarified its Eleventh Amendment jurisprudence. As

we have discussed, the standard now applied by the Court in the

Eleventh Amendment context, and the Court’s more recent decisions

in related areas, establish that the test applied in Wilson is the

proper approach in deciding whether Convress intended to burden

the States by subjecting them to liability under federal law. ( Peti-

tioner asserts (Br. 24 n.14) that the plurality in Welch reaffirmed

the prior conclusion that the States were subject to liability under

the Federal Employers’ Liability Act, but the Welch plurality

did not address the State's statutory liability (see 107 S.Ct. at

2947 n.6)).

' Petitioner argues (Br. 37) that the Court has differen-

tiated between the inquiry under the Eleventh Amendment and

the question whether the States are subjegt to liability. But the

decisions that petitioner cites leave open the second question, hold-

ing only that Congress did not abrogate the States’ Eleventh

14

Second, the Court’s Eleventh Amendment jurisprudence

is relevant to the question presented here because of the

close relationship between the issue of statutory con-

struction under the Eleventh Amendment—whether Con-

gress intended to subject the States to suit in federal

court—and the question whether Congress intended to

subject the States to liability at all. In the vast majority

of cases, Congress does not expressly address either the

States’ susceptibility to liability in general or their sus-

ceptibility to suit in federal court, but it seems likely

that Congress would expect the two issues to be resolved

in the same way. When creates a federal cause

of action, its general assumption undoubtedly is that

claims brought under that statute will be heard in fed-

eral court under the general grant of federal question

jurisdiction (see 28 U.S.C. 1331) or under a more

specific grant of subject-matter jurisdiction." Indeed, it

is difficult to see why Congress would wish to create

classes of federal claims cognizable only in state court,

at least absent special circumstances favoring that result.

For these reasons, if Congress focused on the issue, it

almost certainly would choose either to subject the States

to suit in federal court or to exempt them from liability

altogether.

Applying different statutory interpretation standards

to the liability and Eleventh Amendment issues increases

the chances that the two issues will be resolved differ-

ently. This would create a class of federal actions against

the States that may be brought only in state court—

a peculiar result that is most unlikely to reflect what

Amendment immunity. See Welch, 107 S.Ct. at 2947 n.6 (plurality

opinion) ; Atascadero, 473 U.S. at 238-240 n.2: Employees eo. Mis-

souri Dep't of Public Health, 411 U.S. 279, 287 (1973). These de-

cisions accordingly provide no basis for applying different statutory

interpretation standards in these two contexts.

* For example, Congress provided for exclusive jurisdiction in

the federal courts over claims under the Copyright Act (see 2s

U.S.C. 1338(a)), undoubtedly assuming that all persons subject te

liability for copyright infringement were subject to the jurisdic-

tion of the federal courts.

15

Congress meant to accomplish. As this Court recently

remarked, Congress would not make “|s|uch a major

change in the existing rules * * * without specific pro-

vision in the text of the statute” (United Savings Ass'n

v. Timbers of Inwood Forest, 108 S.Ct. at 634). Thus, to

avoid a subversion of congressional intent, this Court

should apply the same legal standard to both of these

closely related questions of statutory interpretation.

3. Congress has not clearly expressed its intent to sub-

ject the States to liability under Section 1983. Nothing

in the language of Section 1983 indicates that the States

may be sued under the statute and, as we discuss in de-

tail below ‘at 16-21), the legislative history contains no

evidence that Congress intended or even anticipated that

Indeed, this conclusion is virtually compelled by Quern

v. Jordan, 440 U.S. 332 (1979), in which this Court held

that Congress did not intend to abrogate the States’

Eleventh Amendment immunity from suit in federal

court on claims under Section 1983. Although the Quern

Court stated its ultimate conclusion in terms of the ab-

sence of a clear congressional intent to abrogate the

States’ Eleventh Amendment immunity, that conclusion

rested on the determination that the statutory language

and legislative history did not clearly demonstrate “that

Congress intended by the general language of § 1983 to

override the traditional sovereign immunity of the

States.” Jd. at 341; see also id. at 343. That very deter-

mination is dispositive in the present case: because Con-

gress did not set forth with clarity its intent to override

the States’ sovereign immunity and subject them to dam-

ages ‘iability, Section 1983 cannot be interpreted to im-

pose such liability upon the States.

B. Congress Did Net Intend To Subject The States To

Liability Under Section 1983.

Even if ordinary standards of statutory interpretation

are applied in determining whether Congress intended to

subject the States to lability under Section 1983, the only

16

possible conclusion is that Congress had no such intent.

Again, the Quern Court’s analysis of the relevant por-

tions of the legislative history of Section 1983 leaves no

room for the conclusion that the States themselves may

be held liable in damages. The Court in Quern con-

sidered and rejected a variety of attempts to find in the

legislative history evidence of congressional intent to sub-

ject the States to liability. Those same contentions can-

not now be resurrected on the ground that Quern held

only that Congress’s intent was not “clear.” Congres-

sional intent simply cannot be sliced so thinly. The

Court’s unequivocal rejection of the arguments now ad-

vanced by petitioner precludes a contrary determination

here. As Justice Brennan recognized in his separate

opinion in Quern, the Court effectively determined in

that case that “a State is not a ‘person’ for purposes of

42 U.S.C. § 1983” (440 U.S. at 350).

1. The language and legislative history of Section 1983

show that Congress did not intend to impose liabil-

ity on the States.

As with any question of statutory interpretation,

analysis of the scope of Section 1983 must begin with the

relevant statutory language—here, the term “person.”

This Court has stated that “in common usage, the term

‘person’ does not include the sovereign, [and] statutes

employing the phrase are ordinarily construed to exclude

it.” United States v. Cooper Corp., 312 U.S. 600, 604

(1941): see also Wilson v. Omaha Indian Tribe, 442 U.S.

at 667 (applying this rule in holding that the term

“white persons” did not include the sovereign States) ;

Stanley v. Schwalby, 147 U.S. 508 (1893). This principle

of statutory construction is especially applicable where

the effect of construing “person” broadly would be to

impose a burden upon the States. Wilson v. Omaha In-

dian Tribe, 442 U.S. at 667: United States v. Knight,

39 U.S. 301. 315 (1840); compare Georgia v. Evans,

316 U.S. 159 (1942) ‘holding that a State is a “person”

17

entitled to bring an action under the Sherman Act be-

cause States would otherwise be deprived of the benefit

of the remedy prescribed by the federal statute).° The

presumption may, of course, be overcome by evidence of

contrary congressional intent. But a review of the rele-

vant legislative materials supports rather than undercuts

the conclusion that Congress did not intend to subject the

States to liability under Section 1983.

Section 1983, originally enacted as Section 1 of the

Civil Rights Act of 1871, 17 Stat. 13, was not Congress’s

first venture into general federal civil rights legislation.

Five years earlier, Congress had enacted Section 2 of the

Civil Rights Act of 1866, 14 Stat. 27, which imposed

criminal penalties upon persons who deprived others of

their constitutional rights. Section 1 of the 1871 Act

created a federal civil remedy for conduct that violated

Section 2 of the 1866 Act. Other provisions of the 1871

Act criminalized conspiracies to deny constitutional rights

and authorized both the imposition of martial law and

the suspension of habeas corpus in the event that a local

insurrection went unchecked in any State. Although the

1871 Act was passed expeditiously, it was the subject of

extensive and heated debate in both the House and the

Senate. “The Act * * * was passed by a partisan vote

in a highly inflamed atmosphere. It was preceded by

spirited debate which pointed out its grave character and

susceptibility of abuse * * *.” Collins v. Hardyman, 341

® Petitioner bases his argument (Br. 23) for a broad construction

of the term “person” upon this Court’s statement in Monell v.

Department of Social Servs., 436 U.S. 658, 701 (1978), that “ab-

sent a clear statement in the legislative history supporting the

conclusion that § 1 was not to apply to the official acts of a municipal

corporation.” municipalities should be presumed to be “persons”

under the statute. For the reasons we have already discussed (see

page 12 and note 6, supra), that principle simply does not apply

to the determination whether the States are encompassed within

the term “person.” Indeed, even the Monell Court recognized the

distinctive role of the States by explicitly limiting its holding to

“local government units which are not considered part of the State

for Eleventh Amendment purposes” (436 U.S. at 690 n.54).

18

U.S. 651, 657 (1951). Two aspects of that debate shed

light upon the question of statutory interpretation pre-

sented here.

First, “{gljiven the importance of the States’ tradi-

tional sovereign immunity, if in fact the Members of the

42d Congress believed that § 1 of the 1871 Act overrode

that immunity, surely there would have been lengthy

debate on this point and it would have been paraded out

by the opponents of the Act along with the other evils

that they thought would result from the Act” (Quern,

440 U.S. at 343). In fact, although Congress extensively

debated other provisions of the 1871 Act, very little at-

tention was paid to Section 1 and the debates do not con-

tain even a hint that the provision was intended to sub-

ject the States themselves to suits for damages. See ibid.;

Monell, 436 U.S. at 665."

Despite “anguished outcr[ies] from those committed

to unrevised notions of state sovereignty,” Quern, 440

U.S. at 364 (Brennan, J., concurring), none of the Act’s

opponents even suggested that Section 1 would erode

the States’ sovereign immunity, and possibly their fiscal

integrity, by opening the door to damages actions against

the States. The bill’s opponents focused instead on the

threat to state authority posed by the Act’s martial law

and habeas corpus provisions. See Quern, 440 U.S. at

341 n.10; Nowak, The Scope of Congressional Power to

Create Causes of Action Against State Government and

the History of the Eleventh and Fourteenth Amendments,

75 Colum. L. Rev. 1413, 1466-1467 & n.257 (1975);

Wolcher, Sovereign Immunity and the Supremacy Clause,

69 Calif. L. Rev. 189, 210 & n.79 (1981).

10 Most members of the 42d Congress accepted the proposition

that Section 1 “merely carr[ies] out the principles of the civil

rights bill [of 1866], which have since become a part of the Con-

stitution.” Cong. Globe, 42d Cong., Ist Sess. 568 (1871) (Sen.

Edmunds). See also Appendix to Cong. Globe, 42d Cong., 1st Sess.

68 (1871) (Rep. Shellabarger).

19

The most thorough and painstaking critique of Section

1 by a Southern Senator raised five separate objections

to the provision, but omitted entirely from the parade of

horribles any reference to potential state damages lia-

bility. See Appendix to Cong. Globe, 42d Cong., Ist Sess.

916-217 (1871) (Globe App.) (Sen. Thurman). This

omission is particularly significant in light of the re-

peated allusions by Southern Members of Congress to the

parlous financial straits of the vanquished South and the

injustice of levying federal taxes on depleted state treas-

uries. See, e.g., Cong. Globe, 42d Cong., Ist Sess. 336

(1871) (Globe) (Rep. Whitthorne); id. at 362 (Rep.

Swann); id. at 377 (Rep. Waddell); id. at 379 (Rep.

Shober). Such opposition as was leveled at Section 1

focused on the potential effects of the provision on indi-

vidual officials rather than state governments. Repre-

sentative Arthur stated that “[u]nder the provisions of

this section everv judge in the state court and every

other officer thereof, great or small, will enter upon and

pursue the call of official duty with the sword of Damocles

suspended over him by a silken thread * * *.” Globe

at 366. Legislators raised fears of unlimited liability

of legislative, executive, and judicial officers under Sec-

tion 1. See, e.g., id. at 385 (Rep. Lewis) ; Globe App. at

217 (Sen. Thurman).

If the notion that Section 1 subjected the States them-

selves to similar unlimited damages liability had been

considered even remotely plausible, the bill’s opponents

undoubtedly would have raised such an argument in the

debates. The only conclusion to be drawn is that “this

silence on the matter is itself a significant indication”

that Congress did not intend to subject the States to

damages liability under the statute (Quern, 440 U.S. at

343) ."

11 Petitioner’s amici are simply wrong in asserting (Br. 5) that

Representative Shellabarger “explained” that Section 1 authorized

a remedy against the States. Representative Shellabarger said no

20

The debate over a challenge to the constitutionality of

Section 1 raised by legislators opposed to the adoption of

that provision also illuminates the question presented

here. These legislators asserted that the bill was un-

constitutional because the States were excluded from its

proscriptions. “The language [of the Fourteenth Amend-

ment] is ‘No State’ shall do this or that. Individuals

nor a combination of individuals are mentioned, and yet

they are to be brought under the provisions of the bill

and the ‘State’ is to be exempted.” Globe App. at 208

(Rep. Blair). Proponents of the bill answered this con-

tention by arguing that the States acted through their

officials, that the actions of those officials constituted state

action reachable under the Fourteenth Amendment, and

that Congress therefore had the power to impose liability

on those officials. Globe at 661, 662 (Sen. Vickers) ; id.

at 696 (Sen. Edmunds). The fact that the proponents of

the legislation chose to defend the provision in this man-

ner, without ever proffering the much more obvious ex-

planation that the term “person” included the States as

well, is powerful evidence that Congress did not intend

to subject the States to liability.”

Petitioner (Br. 10-16) and his amici (Br. 5-8, 11-18)

seize upon various statements in the legislative history

to the effect that Section 1983 and the Fourteenth Amend-

ment were intended to reach abuses of state authority;

they assert that these passages demonstrate Congress’s

intent to subject the States themselves to damages lia-

bility. There can be no doubt that the target of both

the Fourteenth Amendment and Section 1983 was un-

such thing; he simply explained that the statute provided a remedy

for unconstitutional abuses of state power. See pages 20-21, infra.

2 Petitioner thus errs (Br. 17-18) in asserting that this aspect

of the legislative history of Section 1983 weighs in favor of his

interpretation of the statute. The discussion of action by govern-

ment officials justified the imposition of liability on individuals for

unconstitutional abuses of state power; it provides no basis for con-

cluding that Congress intended to impute liability to the States

themselves.

21

constitutional state action; indeed, state action is the

predicate for the application of the Fourteenth Amend-

ment. But there is a clear difference between defining

the types of unconstitutional abuses of state power that

violate a statute and describing the class of defendants

liable in damages for such unlawful conduct. These por-

tions of the debate over Section 1983 relate directly to

the former issue, but have no relevance at all to ascer-

taining Congress’s intent with respect to the latter

question.”

Petitioner also relies (Br. 18-22) upon the debate over

the Sherman Amendment, a provision that, in its modi-

fied version, would have subjected local governments to

vicarious liability for damages caused by mob violence.

As a threshold matter, it is difficult to see how Con-

gress’s rejection of the Sherman Amendment can be in-

terpreted to justify imposing liability upon the States.

Petitioner states that the debate over the Sherman

Amendment demonstrates that Congress believed it

“could” impose damages liability upon the States (Br.

21, 22). But the question is not whether Congress

thought it had the power to subject the States to this

liability; the question is whether Congress intended to

do so. And what is significant about the Sherman Amend-

ment debate is that there was never even an attempt to

impose this sort of vicarious liability upon the States,

despite the fact that one Congressman suggested that

course of action (see Globe at 791 (Rep. Willard)).

That fact clearly demonstrates Congress’s reluctance to

intrude upon the States’ sovereign immunity, and weighs

heavily in favor of the conclusion that the States are

not subject to any liability under Section 1983.

18 Petitioner’s amici appear to repeat this error in their conten-

tion (Br. 14-15) that Section 2 of the 1866 Act, the criminal statute

that served as the model for Section 1983, was “directed at [the]

states.” There is no doubt that the statute is designed to crimi-

nalize unconstitutional state action, but it is equally clear that the

States themselves are not subject to criminal liability under Sec-

tion 2.

22

2. Congress’s intent not to override common-law im-

munities in enacting Section 1983 confirms that the

States are not subject to damages liability.

Even if the legislative history demonstrating that Con-

gress did not intend to impose damages liability upon the

States is put to one side, the conclusion is inescapable

that a State is not a “person” within the meaning of

Section 1983. This Court has consistently held that “the

all-encompassing language of § 1983 [subjecting ‘any per-

son’ to liability] * * * is not to be taken literally.”

Briscoe v. LaHue, 460 U.S. 325, 330 (1983). “One im-

portant assumption underlying the Court’s decisions in

this area is that members of the 42d Congress were

familiar with common-law principles, including defenses

previously recognized in ordinary tort litigation, and that

they likely intended these common-law principles to ob-

tain, absent specific provisions to the contrary.” City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981).

Accordingly, “{w]here the immunity claimed by the de-

fendant was well established at common law at the time

§ 1983 was enacted, and where its rationale was com-

patible with the purposes of the Civil Rights Act, [this

Court has] construed the statute to incorporate that im-

munity.” Owen v. City of Independence, 445 U.S. 622,

638 (1980).

The Court has applied this principle in a variety of

contexts. See Stump v. Sparkman, 435 U.S. 349 (1978)

(judicial immunity); Imbler v. Pachtman, 424 U.S. 409

(1976) (prosecutorial immunity); Scheuer v. Rhodes,

416 U.S. 232 (1974) ‘qualified immunity for executive

officials’; Pierson v. Ray, 386 U.S. 547 (1967) (judicial

immunity! : Tenney v. Brandhove, 341 U.S. 367 (1951)

(legislative immunity); see also Steinglass, The Emerg-

ing State Court § 1983 Action: A Procedural Review,

38 U. Miami L. Rev. 381, 474 (1984); cf. Owen v. City

of Independence, supra (no “good faith” immunity for

municipalities under Section 1983 because of absence of

common-law history of such immunity).

ot ee lie

23

The rule that “the sovereign cannot be sued in his own

courts without his consent” was ‘a familiar doctrine of

the common law” in the post-Civil War era. The Siren,

74 U.S. (7 Wall.) 152, 153-54 (1869) (“It is obvious

that the public service would be hindered, and the public

safety endangered, if the supreme authority could be

subjected to suit at the instance of every citizen, and

consequently controlled in the use and disposition of the

means required for the proper administration of the

government.”); see also Railroad Co. v. Tennessee, 101

U.S. (11 Otto) 337, 339 (1880) (“The principle is ele-

mentary that a State cannot be sued in its own courts

without its consent.”); Nichols v. United States, 74 U.S.

(7 Wall.) 122, 126 (1869); Beers v. Arkansas, 61 U.S.

(20 How.) 527, 529 (1857); J. Dillon, Treatise on the

Law of Municipal Corporations $14 (1872). Indeed,

while state sovereign immunity had common law roots

reaching well back into English history (‘see generally

5 F. Harper, F. James & O. Gray, The Law of Torts,

$$ 29.1-29.4, at 596-605 (1986)), the doctrine took on

new practical significance after the Civil War, as States

sought relief from debilitating debts. See Engdahl, /m-

munity and Accountability for Positive Governmental

Wrongs, 44 U. Colo. L. Rev. 1, 21 (1972).

No common-law immunity was better established in

1871 than the States’ sovereign immunity from suit.

Under this Court’s settled approach in interpreting Sec-

tion 1983, the only possible conclusion is that Congress

must have intended to incorporate that common-law im-

munity principle to limit the scope of liability under the

statute. For this reason, Congress could not have in-

tended the term “person” in Section 1983 to include the

States. See Quern, 440 U.S. at 342-343.

3. Given the purposes of Section 1983, Congress would

not have imposed liability upon the States while at

the same time barring actions against the States in

federal court.

The principal purpose of Section 1983 was to provide

a federal court forum for actions to remedy unconsti-

24

tutional uses of state power. See Felder v. Casey, No. 87-

526 (June 22, 1988), slip op. 14 (“the principal remedy

Congress chose to provide injured persons was immediate

access to federal courts” (emphasis in original) ) ; Patsy

v. Board of Regents, 457 U.S. 496, 503 (1982) (“[I|n

passing §1 [of the Civil Rights Act of 1871], Congress

assigned to the federal courts a paramount role in pro-

tecting constitutional rights.”). Indeed, Congress was

driven to create a federal remedy precisely because it be-

lieved that state courts were either unwilling or unable

to provide a forum for effective vindication of federal

constitutional rights. See, e.g., Globe at 321 (Rep. Stough-

ton) ; id. at 374 (Rep. Lowe) ; id. at 459 (Rep. Coburn) ;

Globe App. at 78 (Rep. Perry) ; id. at 252 (Sen. Morton) ;

see also Patsy, 457 U.S. at 506-507; Mitchum v. Foster,

407 U.S. 225, 240 (1972); Nichol, Federalism, State

Courts, and Section 1983, 73 Va. L. Rev. 959, 974-975

(1987). As Senator Osborn observed, “[i]f the State

courts had proven themselves competent to suppress the

local disorders, or to maintain law and order, we should

not have been called upon to legislate.” Globe at 653.

The concerns that led Congress to create a federal

court remedy undoubtedly would be at their zenith in the

event the State itself were the defendant in state court.

To the extent that state courts were deficient in vindicating

plaintiffs’ federal rights as a general matter, it seems

likely that those courts would be even more reluctant to

decide a case in the plaintiff's favor where that deter-

mination would impose monetary liability on the State.”

Accordingly, if Congress had intended to create a cause

of action directly against the States, it certainly would

have ensured that such actions could be brought in fed-

eral court. The fact that, as this Court held in Quern,

14 This Court has stated that “[t]he defects Congress perceived

in state courts lay in their jury factfinding processes” (Felder,

slip op. 15 n.4). A jury would have been especially reluctant to re-

turn a damages verdict against a State a century ago because the

judgment would have added to the State’s liabilities and could

thereby have increased the tax burden on all citizens.

A i Nt i tain i lS yt

25

Congress did not abrogate the State’s Eleventh Amend-

ment immunity is strong evidence that Congress did not

intend to subject the States themselves to any liability

under Section 1983.

Contrary to petitioner’s contention (Br. 32-36), the

historic limitations on federal question jurisdiction do not

support an interpretation of Section 1983 that would

permit actions against States only in state court. The

anomaly in petitioner’s interpretation of the statute is

not simply that a federal claim could be brought only in

state court. Rather, petitioner’s argument would result

in a large class of federal claims that could not be

brought in federal court despite the fact that Congress’s

clear intention was to open the federal courts to claims

cognizable under Section 1983. This anomaly is com-

pounded by the fact that Section 1983 does not by its

terms require the States to entertain claims under that

provision. See Martinez, 444 U.S. at 283 n.7. Peti-

tioner’s construction of the statute could thus result in a

cause of action that cannot be heard in any court.”

Petitioner’s theory is anomalous for another reason as

well. At the time Section 1983 was enacted, there had

been few waivers of state sovereign immunity and, there-

fore, state courts simply did not have occasion to hear

actions against a State. Those courts accordingly were not

likely to have established the special rules of procedure—

concerning jurisdiction, service of process, enforcement

15 Petitioner argues (Br. 38-44) that there is no anomaly be-

cause the Congress that enacted Section 1983 would not have

thought that the Eleventh Amendment barred actions against the

State in federal court. Reduced to its essence, petitioner’s argument

is that this Court in Quern reached the wrong conclusion about

Congress’s intent to subject the States to suit in federal court.

There is no basis for petitioner’s second-guessing the Court’s de-

cision in Quern, which rested not on some abstract legal theorem,

but on a close examination of the legislative history of the statute.

The Court’s conclusion that Congress did not intend to subject the

States to the jurisdiction of the federal courts is dispositive of this

issue.

26

of judgments, and the like—necessary to accommodate

actions against the sovereign. It is exceedingly doubtful

that Congress would have acted to saddle state courts

with an entirely new class of cases that those courts were

not equipped to adjudicate.

4. Policy arguments do not justify a broad expansion

of Section 1983 liability.

Petitioner’s amici devote much of their discussion not

to an analysis of the language and legislative history of

Section 1983 but to various policy arguments that al-

legedly require the inclusion of States within the cate-

gory of “persons” under the statute. These arguments,

even if correct, would not justify a construction of Sec-

tion 1983 that is at odds with congressional intent. See

Laborers Health & Welfare Trust Fund v. Advance

Lightweight Conerete Co., 108 S.Ct. 830, 837 (1988).

But in fact the arguments are not correct.

To begin with, contrary to the apparent view of peti-

tioner’s amici (Br. 19-27), this Court has never held that

Congress intended Section 1983 to provide compensation

to every plaintiff injured by a constitutional violation.

Indeed, the Court has specifically rejected that approach,

recognizing instead that Congress balanced conflicting

policies in determining the scope of liability under the

statute. See, e.g., Davis v. Scherer, 468 U.S. 183 (1984)

(applying qualified immunity test adopted by the Court

in Harlow v. Fitzgerald, 457 U.S. 800 (1982)); Monell,

436 U.S. at 690-694 (‘refusing to subject municipalities

to respondeat superior liability and holding that local

governments may be held liable only for injuries caused

by unconstitutional government policies); /mbler, 424

U.S. at 422-423 (prosecutorial immunity is based on

“concern that harassment by unfounded litigation would

cause a deflection of the prosecutor’s energies from his

public duties, and the possibility that he would shade his

decisions instead of exercising the independence of judg-

ment required by his public trust”). Accordingly, there

is no reason for the Court to disregard the clear evidence

27

that Congress did not intend to override well-settled prin-

ciples of sovereign immunity when it enacted Section

1983."*

It is worth noting, moreover, that the interpretation

of Section 1983 for which we contend does not deprive

prospective plaintiffs of all remedies for unconstitutional

state action. First, a plaintiff may maintain an action

for injunctive relief in order to protect himself against

future harm. Second, state officials may be subject to

monetary liability in their personal capacities. Third,

state law may authorize an action against the State for

unconstitutional conduct. Indeed, in the decision below,

the Supreme Court of Michigan recognized a state-law

action analogous to Section 1983 (see note 4, supra).

It was petitioner’s failure to preserve his state-law claim

that rendered him unable to take advantage of that

determination.

Petitioner’s amici also contend (Br. 27-29) that the

threat of constitutional violations will not be deterred

sufficiently unless the States themselves are subject to

suit under Section 1983. But these amici offer no em-

pirical or other support for this assertion; there have

been no rampant outbreaks of unconstitutional conduct

despite the fact that Section 1983 suits against the States

have been relatively infrequent and almost uniformly un-

successful. We submit that experience has shown that

the existing remedies, especially the availability of actions

against state officials in their personal capacities, suf-

16 Indeed, recent events in Congress demonstrate the continued

vitality of the legislative judgment made in 1871. Both before

and after this Court’s decision in Quern, legislation was introduced

that would have expressly subjected the States to liability under

Section 1983. See S. 990, 97th Cong., Ist Sess. (1981); S. 1983,

96th Cong., 1st Sess. (1979); S. 35, 95th Cong., Ist Sess. (1977) ;

See also Sagafi-Nejad, Proposed Amendments to Section 1983 In-

troduced in the Senate, 27 St. Louis U.L.J. 373 (1983). None of

the bills was even reported to the full Senate. Compare Pub. L. No.

96-170, 93 Stat. 1284 (1979) (overturning result in District of

Columbia v. Carter, 409 U.S. 418 (1973) ).

28

ficiently deter unconstitutional exercises of state power.

See, ¢.g., Harlow v. Fitzgerald, 457 U.S. at 814.

C. Petitioner Cannot Circumvent Congress’s Decision To

Exclude The States From Liability Under Section 1983

By Bringing An Official-Capacity Suit Against State

Officials.

Petitioner contends (Br. 28-31) that even if Congress

did not intend to subject the States to damages liability

under Section 1983, a plaintiff may nonetheless circum-

vent Congress’s design and recover damages from a State

simply by changing the form of his complaint. According

to petitioner, the statute authorizes a damages action

against a state employee in his official capacity even if

the State itself is not subject to liability. Petitioner is

plainly wrong: attempted artful pleading cannot over-

ride congressional intent.**

This Court has repeatedly recognized that an action

against a government officer in his official capacity “gen-

erally represent[s] only another way of pleading an ac-

tion against an entity of which an officer is an agent”

(Monell, 436 U.S. at 690 n.55). “As long as the govern-

ment entity receives notice and an opportunity to re-

spond, an official-capacity suit is, in all respects other

than name, to be treated as a suit against the entity.

It is not a suit against the official personally, for the real

party in interest is the entity.” Kentucky v. Graham,

473 U.S. 159, 166 (1985) (emphasis in original; citation

omitted); see also Karcher v. May, 108 S.Ct. 388, 393

(1987) (“the real party in interest in an official capacity

suit is the entity represented and not the individual office-

holder”); Brandon v. Holt, 469 U.S. 464, 471 (1985)."*

17 Even petitioner’s amici acknowledge (Br. 3 n.2) that “a suit

against * * * a state official in his official capacity is for all practical

purposes a suit against the state itself” and do not attempt to de-

fend the distinction drawn by petitioner.

18“The general rule is that a suit is against the sovereign if

‘the judgment sought would expend itself on the public treasury

———— =

29

Since Section 1983 does not authorize suits against the

States, and an official-capacity action against a state offi-

cial is “in all respects other than name” a suit against

the State, such an official-capacity action cannot be main-

tained under Section 1983.

Petitioner nonetheless asserts (Br. 28-29) that this

well-settled rule does not apply here because the Court

has already concluded in the context of actions for in-

junctive relief that official-capacity suits are cognizable

under Section 1983. This contention rests on a basic mis-

understanding of the grounds upon which Section 1983

actions for injunctive relief may be maintained in fed-

eral court. In Ex parte Young, 209 U.S. 123 (1908),

a federal court had enjoined a state Attorney General

from bringing suit to enforce a state statute that al-

legedly violated the Fourteenth Amendment. This Court

held that the Eleventh Amendment did not prohibit is-

suance of the injunction. The Court’s rationale was that

an unconstitutional enactment is “void” and that the

state official was therefore “stripped of his official or

representative character and [was] subjected in his per-

son to the consequences of his individual conduct.” 209

U.S. at 160; see also Pennhurst II, 465 U.S. at 102.

The premise of petitioner’s argument is thus incorrect;

Section 1983 actions seeking injunctive relief may be

maintained in federal court only because of the “fiction”

(Pennhurst IT, 465 U.S. at 102) that they are not official

capacity actions, but are rather actions against the officer

in his personal capacity."” As the Court noted in Ken-

or domain.’” Dugan v. Rank, 372 U.S. 609, 620 (1963) (citations

omitted); see also Pennhurst I], 465 U.S. at 101 n.11. That surely

is the case here. Petitioner concededly secks to recover funds

from the state treasury; that is why he brought his action in the

Michigan Court of Claims. See Pet. App. 127a-129a.

19 Contrary to petitioner’s claim (Br. 27), the Court’s holding

in Hutto v. Finney, 437 U.S. 678 (1978), that attorney’s fees may

be awarded against the State in Section 1983 injunctive actions

30

tucky v. Graham, 473 U.S. at 167 n.14, “actions for

prospective relief are not treated as actions against the

State.” The Court’s affirmance of injunctions issued in

those actions accordingly cannot support petitioner’s con-

tention that official-capacity suits for damages are cog-

nizable under Section 1983.*"

CONCLUSION

The judgment of the Supreme Court of Michigan

should be affirmed.

Respectfully submitted,

KENNETH S. GELLER BENNA RUTH SOLOMON

ANDREW J. PINCUS Chief Counsel

MAYER, BROWN & PLATT STATE AND LOCAL LEGAL

2000 Pennsylvania Ave., N.W. CENTER

Washington, D.C. 20006 444 N. Capitol St., N.W.

(202) 463-2000 Suite 349

Of Counsel Washington, D.C. 20001

(202) 638-1445

Counsel of Record for the

August 3, 1988 Amici Curiae

does not indicate that the State is a person within the meaning of

Section 1983. The Hutte Court was construing a different statute—

42 U.S.C. 1988—and relied upon legislative history that specifically

authorized fee awards against a State even if the State was not a

party to the Section 1983 action (see 437 U.S. at 694). The deci-

sion accordingly casts no light on the scope of Section 1983 itself.

2 Of course, the fact that Section 1983 actions for injunctive

relief have been categorized as personal-capacity suits for Eleventh

Amendment purposes does not preclude a different. characterization

for other purposes, such as party substitution rules (see, ¢.¢., Fed.

R. Civ. P. 25). Because such actions are personal-capacity suits for

at least some purposes, however, this Court’s decisions entertaining

such actions without expressly addressing their status for Section

1983 purposes cannot be taken as an implicit determination that

state officials sued in their official capacities are persons under

Section 1983; rather, the Court’s decisions can be read to support

the conclusion that for Section 198% purposes, as for Eleventh

Amendment purposes, these suits are personal-capacity actions.

a 4. ee ee ok