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

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Supreme Court, U.S.

EILED

AUG 3 1988

No. 87-1207

In The 7

Supreme Court of the United States

October Term, 1987

RAY wu.

Petitioner,

MICHIGAN DEPARTMENT OF STATE POLICE

AND DIRECTOR OF STATE POLICE,

Respondents.

ON WRIT OF CERTIORARI TO THE

MICHIGAN SUPREME COURT

AMICUS BRIEF OF THE STATES OF TENNESSEE, ALABAMA,

ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, CONNEC-

TICUT, DELAWARE, FLORIDA, HAWAII, ILLINOIS, INDIANA,

1OWA, KANSAS, KENTUCKY, ‘LOUISIANA, MARYLAND, MIN-

NESOTA, MISSISSIPPI, MISSOURI, MONTANA, NEBRASKA,

NEW HAMPSHIRE, NEW MEXICO, NORTH CAROLINA, NORTH

DAKOTA, OHIO, OKLAHOMA, PENNSYLVANIA, SOUTH CARO-

LINA, SOUTH DAKOTA, UTAH, VERMONT, VIRGINIA, WASH-

INGTON, WEST VIRGINIA, WISCONSIN, WYOMING and the

COMMONWEALTH OF PUERTO RICO IN SUPPORT OF

RESPONDENTS

— —oOo—

W. J. Micwaen Copy

Attorney General and Reporter

State of Tennessee

*Micwargi W. CataLtano

Deputy Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

(615) 741-3499

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

Honorable David L. Wilkinson

Attorney General of Utah

Honorable Jeffrey Amestoy

Attorney General of Vermont

Honorable Mary Sue Terry

Attorney General of Virginia

Honorable Kenneth O.

Eikenberry

Attorney General of

Washington

Honorable Charlie Brown

Attorney General of

West Virginia

Honorable Don J. Hanaway

Attorney General of Wisconsin

Honorable Joseph B. Meyer

Attorney General of Wyoming

QUESTION PRESENTED

Whether a state or its officers, acting in their official

capacities, are ‘‘persons’’ subject to suit in state court

under 42 U.S.C. § 1983?

TABLE OF CONTENTS

Page

INTEREST OF AMICI STATES 1

STATEMENT OF THE CASE 4

SUMMARY OF ARGUMENT +

ARGUMENT:

I. UNDER THE PRINCIPLES OF STATUTORY

CONSTRUCTION, IT MUST BE CONCLUD-

ED THAT THE FORTY-SECOND CONGRESS

DID NOT INTEND THE TERM ‘‘PERSON’”’

UNDER § 1 OF THE CIVIL RIGHTS ACT OF

1871 TO INCLUDE STATES OR ITS OFFI-

CERS ACTING IN THEIR OFFICIAL CA-

De ye 6

Il. THIS COURT’S DECISIONS SUPPORT THE

CONCLUSION THAT STATES OR ITS OF-

FICERS ACTING IN THEIR OFFICIAL CA-

PACITY WERE NOT INTENDED BY THE

42ND CONGRESS TO BE PERSONS UNDER

ee ee, 17

I en 23

iil

TABLE OF AUTHORITIES

Page

Cases Crrep:

Adler v. L.A. Unified School District, 159 Cal.

Rptr. 528 (1979) 2

American Commercial Lines v. Octertag, 582 S.W.

2d 51 (Ky.App. 1979)

Alberty v. Daniel, 25 T1l.App.3d 291, 323 N.E.2d 110

(1974) on... 2

Alvarado v. City of Dodge City, 10 Kan.App.2d

363, 702 P.2d 935 (1985) 2

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

I a ‘ 14

Beers v. Arkansas, 61 U.S. 991 (1858) ........ 14

Board of Trustees of Weston County School Dis-

trict No. 1 v. Holso, 584 P.2d 1009 (Wy. 1978) ........... 2

Brody v. Leamy, 393 N.Y.Supp.2d 243, 90 Mise.2d

1 (1978) ............. 2

California v. Taylor, 353 U.S. 553 (1957) ieliclaaeanmiinaeiiiiain 20

Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d

248 (1969) 3

Chisholm v. Georgia, 2 Dall. 419 (1794) 0... 12, 15, 16, 17

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) 00 8

Cwil Aeronautics Board v. Delta Air Lines, Inc.,

367 U.S. 316 (1961) .... 7

De Bleecker v. Montgomery County, 427 A.2d 1075,

reversed on other grounds, 438 A.2d 1348 (Md.

SIE ienisniitasdeie 2

Durango School District No. 9-R v. Thorpe, 200

Colo. 268, 614 P.2d 880 (1980) . 2

TABLE OF AUTHORITIES—Continued

Page

Edelman v. Jordan, 415 U.S. 651 (1974) 18

Endress v. Brookdale Community College, 144 N.J.

Super. 109, 364 A.2d 1080 (App. Div. 1976) 0.2

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 17

Ford Motor Co. v. Indiana Dept. of Treasury, 323

U.S. 459 (1945) 22

Georgia v. Evans, 316 U.S. 159 (1942) 7

Hans v. Louisiana, 134 U.S. 1 (1890) 15

Hook v. Hook, 101 N.M. 390, 683 P.2d 507 (1984) _.... 3

Hughes «. Livingston Parish School Bd., 459 8.2d

10, writ denied for 62 8.2d 1250 (1984) 00 2

Hunsaker v. Borden, 5 Cal. 288 (1855) 13

Hutto v. Finney, 437 U.S. 678 (1979) 21

Jackson v. Kurtz, 65 Ohio App.2d 152, 416 N.E.2d

1064 (1979) 2

Jones v. Schlender, 102 Ida. 776, 640 P.2d 1177

(1982) 3

Kentucky v. Graham, 474 U.S. 170 (1985) 23

Klesh v. Commonwealth Dept. of Public Welfare,

55 Penn. Commonwealth 587, 423 A.2d 1348

(1980) 3

Kristensen v. Strinder, 343 N.W.2d 67 (N.W.2d

2 Se 2

Makanui v. Dept. of Education, 721 P.2d 165

(Ha. 1986) | 9

Marshall v. Clark, 22 Tex. 23 (1858) 13

Martinez v. State of California, 444 U.S. 277

(1980) 3

TABLE OF AUTHORITIES—Continued

Page

McClanahan v. Cochise College, 25 Ariz.App. 13,

540 P.2d 744 (1975) 2

McIntyre v. Monarch Feed Mills, Inc., 276 Ark. 1,

631 S.W.2d 307 (1982) 3

Moore v. Molinari, 724 S.W.2d 860 (Tex. App.

1986) 2

Michigan State Bank v. Hastings, 1 Dougl. 225

(Mich. 1844) ... Sieneemeiestienieinitiasisacees —

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

Monroe v. Pape, 365 U.S. 167 (1961) 0. 20, 21

Myers v. Zanesville and M. Turnpike Co., 11 Ohio

re I a cicinniliiion 13

Olistead v. Native Village of Tyonek, 560 P.2d 31

(Alaska 1977) 3

Ohio v. Helvering, 292 U.S. 366 (1934) 7

Parden v. Terminal sain of Alabama, 377 U.S.

184 (1964) . aaied 20

Penthouse, Inc. v. ies 399 S.2d 456 (Fla. 1979)...

Perrin v. U.S., 444 U.S. 37 (1979)

Petty v. Tennessee-Missouri vsti Comm’n, 359

U.S. 275 (1959) . 20

Poling v. Goins, 713 S.W.2d 305 (Tenn. 1986) 0 3

Quern v. Jordan, 440 U.S. 332 (1979) 00 5, 17, 18, 19

Regan v. Wald, 468 U.S. 222 (1984) 8

Rezezmk v. Chief of Police of South Hampton,

374 Mass. 475, 373 N.E.2d 1128 (1978) 2

Rosacker v. Multnomah, 43 Ore.App. 583, 603 P.2d

1216 (1979) 2

TABLE OF AUTHORITIES—Continued

Smith v. Michigan, 410 N.W.2d 749 (Mich. 1987) ..

Snuggs v. Stanly County Dept. of Public ecrasaie

310 N.C. 739, 314 S.E.2d 528 (1984) 0.

State Tax Comm'n v. re 387 So.2d 712

(Miss. 1980) . ne

State v. Tidwell, 32 Wash.App. 971, 651 P.2d 228

(1982)

Swenson v. Emerson Elec. Co., 374 N.W.2d 690

(Minn. 1985)

Terrell v. City of Bessemer, 406 So.2d 337 (Ala.

1981)

Terry v. Kolski, 78 Wise.2d 475, 254 N.W.2d 704

(1977) .

Thompson v. Medical Licensing Bd., 180 Ind.App.

333, 398 N.E.2d 679 cert. denied, 449 U.S. 937

(1979)

Thiboutot v. State, 405 A.2d 230, aff’d 448 U.S. 1

(1979)

Titus v. Progresswe Glassworkers ani 301

S.E.2d 577 (W.Va. 1983)

Tracy v. Hornbuckle, 8 Bush 336 (Ky. 1871) .

Turner v. State, 27 Ark. 337 (1871) —_________.....

Tyler v. Whitehead, 583 S.W.2d 240 (Mo. App.

1979)

U.S. v. California, 297 U.S. 175 (1936)

U.S. v. Champlin Refining Co., 341 U.S. 290 (1951)

Welch v. Texas Dept. of enetinnth 107 S.Ct. 2941

Se ree

Westin v. Dana, 51 Me. 461 (1862) .

vil

TABLE OF AUTHORITIES—Continued

Page

Williams v. Register, 3 Tenn, 214 (1812) 13

Woonsocket Historical Society v. City of Woon-

socket, 120 R.I. 259, 387 A.2d 530 (1978) 00 3

Wyman v. Popham, 252 Ga. 247, 312 S.E.2d 795

(1984) —_— 2

Ex parte Young, 209 U.S. 123 (1908) 000. 5, 6, 14, 21, 22

Ziska v. Water Pollution Control Authority, 195

Conn, 642, 490 A.2d 509 (1985) . 2

Strate ConstiTuTioNAL Provisions:

Alabama—Art. I, § 15 (1875) ..... 13

Arkansas—Art. I, § 17 (1868) 13

California—Art. XI, § 11 (1849) .. 13

Kentucky—Art. VIII, § 6 (1850) 13

Illinois—Art. TV, § 26 (1870) ... 13

Indiana—Art. IV, § 24 (1851) 13

Pennsylvania—Art. LX, § 11 (1838) 13

South Carolina—Art. XIV, §4 (1868) 13

Tennessee—Art. I, § 17 (1870) 13

West Virginia—Art. VI, § 35 (1845) . 13

FeperaL AUTHORITIES:

U.S. Const., Art. III, § 2 12

42 U.S.C. $1983 ~Passim

§ 2, Civil Rights Act of 1866 5, 10, 15

§ 17, Enforcement Act of 1870 .. 10

§ 1, Civil Rights Act of 1871 Passim

Congressional Globe, 42nd Cong., Ist Sess. (1871) 7,8, 9, 17

No. 87-1207

— *

In The

Supreme Court of the United States

October Term, 1987

RAY WILL,

Petitioner,

vs.

MICHIGAN DEPARTMENT OF STATE POLICE

AND DIRECTOR OF STATE POLICE,

Respondents.

_ *

ON WRIT OF CERTIORARI TO THE

MICHIGAN SUPREME COURT

AMICUS BRIEF OF THE STATES OF

ARIZONA, COLORADO, CONNEC-

TICUT, DELAWARE, FLORIDA, HAWAII, ILLINOIS,

IOWA, KANSAS, ; MIN-

NESOTA, MISSISSIPPI, MONTANA, NEBRASKA,

NEW NEW MEXICO, NORTH NORTH

COMMONWEALTH OF PUERTO RICO IN SUPPORT OF

RESPONDENTS

INTEREST OF AMICI STATES

The amici states have a definite and substantial in-

terest in the outcome of this case. At least 29 state appel-

late courts' have explicitly held that their respective juris-

dictions have concurrent authority to hear actions based

upon 42 U.S.C. § 1983. Additionally, courts in 8 other

states have held that their state courts have concurrent

jurisdiction with federal courts to enforce rights granted

under a federal enactment unless there is a prohibition

: Terrell v. City of Bessemer, 406 So.2d 337 (Ala. 1981); Mc-

Clanahan v. Cochise College, 25 Ariz.App. 13, 540 P.2d 744

(1975); Adler v. L.A. Unified School District, 159 Cal.Rptr. 526

(1979); Durango School District No. 9-R v. Thorpe, 200 Colo.

268, 614 P.2d 880 (1980); Ziska v. Water Pollution Control Au-

thority, 195 Conn. 642, 490 A.2d 509 (1985); Penthouse, Inc. v.

Sava, 399 So.2d 456 (Fla. 1979); Wyman v. , 252 Ga. 247,

312 S.E.2d 795 (1984); Makanui v. Dept. of Education, 721 P.2d

165 (Ha. 1986); Alberty v. Daniel, 25 Ill_App.3d 291, 323 N.E.2d

110 (1974); Thompson v. Medical Licensing Bd., 180 Ind.App.

333, 398 N.E.2d 679, cert. denied, 449 U.S. 937 (1979); Alvar

v. City of Dodge City, 10 Kan.App.2d 363, 702 P.2d 935 (1985);

Ae v. Livingston Parish Sc Bd., 459 So.2d 10, writ denied,

62 $.2d 1250 (1984); Thiboutot v. State, 405 A.2d 230, aff'd 448

U.S. 1 (1979); DeBleecker v. Montgomery County, 427 A.2d 1075,

reversed on other grounds, 438 A.2d 1348 (Md. 1983); Rezeznik

v. Chief of Police of South Hampton, 374 Mass. 475, 373 N.E.2d

1128 (1978); State Tax Comm’n v. Vondren, 387 So.2d 712 (Miss.

1980); Tyler v. Whitehead, 583 S.W.2d 240 (Mo.App. 1979); En-

dress v. Brookdale Community College, 144 N.j.Super. 109, 364

A.2d 1080 (App. Div. 1976); Brody v. Leamy, 393 N.Y.Supp.2d

243, 90 Misc.2d 1 (1978); Snuggs v. Stanly County Dept. of Public

Health, 310 N.C. 739, 314 S.£.2d 528 (1984); Kristensen v.

Strinder, 343 N.W.2d 67 (N.D. 1983); jackson v. Kurtz, 65 Ohio

App.2d 152, 416 N.E.2d 1064 (1979); Rosacker v. Multnomah, 43

Ore. . 583, 603 P.2d 1216 (1979); Poling v. Goins, 713 S.W.2d

305 (Tenn. 1986); Moore v. Molinari, 724 S.W.2d 860 (Tex. App.

1986); Titus v. Progressive Glassworkers Union, 301 S.£.2d 577

(W.Va. 1983); State v. Tidwell, 32 Wash.App. 971, 651 P.2d 228

(1982); Terry v. Kolski, 78 Wisc.2d 475, 254 N.W.2d 704 (1977);

Board of Trustees of Weston County School District No. 7 v.

Holso, 584 P.2d 1009 (Wy. 1978).

from doing so.2 At present, no state appellate courts in

this country have refused to exercise concurrent jurisdic

tion over § 1983 claims.’

A number of state and federal courts have addressed

the question of whether the state or its officers, in their

official capacity, are ‘‘persons’’ under 42 U.S.C. § 1983

reaching opposite conclusions. See Smith v. Michigan,

410 N.W.2d 749 at 763-64 (Mich. 1988) (Brickley, J., con-

curring) (most state and federal appellate court decisions

have held that the state is not a “person” for purposes of

§ 1983). Since the vast majority of states have explicitly

recognized concurrent state court jurisdiction over § 1983

claims, this Court’s resolution of the issue will have a sig-

nificant impact on future civil rights litigation in state

courts.

Did the 42nd Congress intend the term ‘‘person’’ in

§ 1 of the Civil Rights Act of 1871 (predecessor to § 1983)

2 ~— Olilstead v. Native Village of Tyonek, 560 P.2d 31 (Alaska

1977); Mcintyre v. Monarch Feed Mills, inc., 276 Ark. 1, 631

S.W.2d 307 (1982); jones v. Schlender, 102 ida. 776, 640 P.2d

1177 (1982); American Commercial Lines v. Ostertag, 582 S.W.

2d 51 (Ky.App. 1979); Swenson v. Emerson Elec. Co., 374 N.W.2d

690 (Minn. 1985); Hook v. Hook, 101 N.M. 390, 683 P.2d 507

(1984); Klesh v. Commonwealth Dept. of Public Welfare, 55

Penn. Commonwealth 587, 423 A.2d 1348 (1980); Woonsocket

pay A Society v. City of Woonsocket, 387 A.2d 530, 120 R.I.

3 In Martinez v. State of California, 444 U.S. 277 (1980), this

whether a state must entertain a claim under § 1983... . [Fur-

ther stating) that where the same type of claim, if arising under

state »w, would be enforced in the state courts, state courts are

py! not free to refuse enforcement of the federal claim.

esta v. Katt, 330 U.S. at 394, 67 S.Ct. at 814. But see Chamber-

gly —— 223 —_ 25, = a 248 (1969).” id. at 234

.7 Amici states would note that Supreme Court of Tennes-

see overruled the Chamberlain decision in Poling v. Goins,

to include a state or its officers in their official capacity,

even though in 1871 the common law doctrine of state

sovereign immunity and the Eleventh Amendment effec-

tively barred suits against the state unless there was an

express waiver by the state or abrogation by Congress?

The amici states are in the unique position of being able

to provide this court with insight in answering this ques-

tion from their collective prospective.

STATEMENT OF THE CASE

The amici states adopt the statement of facts as pre-

sented by the Michigan Supreme Court, below, along with

the statement of facts presented by the respondents in

their brief. See Smith v. Michigan, 410 N.W.2d 749, 751-

54 (Mich. 1987); Respondents’ Brief, pp. 1-8.

SUMMARY OF ARGUMENT

Under the principles of statutory construction, it must

be concluded that Congress did not intend the term ‘“‘per-

son’’ under § 1983 to include states or their officials in

their official capacity. Within the historical context of

Reconstruction, the enactment of 41 of the Civil Rights

Act of 1871 (predecessor to § 1983) was intended to vest

federal courts with jurisdiction to hear civil suits brought

by individuals deprived of their constitutional rights by a

“person” under color of law. This Court held in the

Quern decision that § 1983 suits cannot be brought against

the state in federal court because of the Eleventh Amend-

ment. Why would the 42nd Congress have intended “per-

son” to include states in § 1983 actions brought in state

court when jurisdiction was originally vested with federal

courts in 1871 due to the inability or unwillingness of

state courts to act in response to the lawlessness of the

Ku Klux Klan at that time?

More importantly, in 1871 it was generally recog-

nized by this Court and throughout the country that a

state could not be sued in any court, state or federal.

There were two exceptions to this common law principle:

(1) where a state consented to be sued, or (2) where the

Constitution expressly abrogated sovereignty of a state.

The concept of express Congressional abrogation of

state sovereignty pursuant to constitutional authority was

not developed at the time of the enactment of the

Civil Rights Act of 1871. There is no doubt that the Four-

teenth Amendment authorized such Congressional abro-

gation; however, 41 of that Act did not abrogate either

the Eleventh Amendment or state common law sovereign

immunity. Since no relief could be obtained against the

state in either state or federal court, the conclusion is in-

escapable that Congress did not intend states to be ‘‘per-

sons” under § 1983.

Likewise, state officials being sued in their ‘‘official

capacity’’ were not intended to be ‘‘persons’’ under § 1983.

The notion of ‘‘official capacity’’ suits was not recognized

until 1908 by this Court in Ex Parte Young. The 42nd

Congress could not even conceive of being able to bring

suit against a state official as an indirect action against

the state. Damage actions could not and cannot be main-

tained against state officials in the ‘‘official capacity’’ in

federal court (Eleventh Amendment) or state court (com-

mon law sovereign immunity). As for equity actions

against state officials, this court in Ex Parte Young, al-

though recognizing the necessity of the legal fiction, noted

that such suits do not affect state sovereignty.

Amici states urge this Court to rely upon the historical

context of the enactment of §1 of the Civil Rights Act of

1871 as its touchstone in deciding this issue. Once the

foundation of state sovereign immunity as it existed in

1871 is laid, the answer becomes clear: Congress did not

intend the state or its officers, in their official capacities,

to the ‘‘persons’’ under § 1983.

‘_

“

ARGUMENT

I. UNDER THE PRINCIPLES OF STAT-

UTORY CONSTRUCTION, IT MUST BE

CONCLUDED THAT THE FORTY-SECOND

CONGRESS DID NOT INTEND THE TERM

‘‘PERSON’’ UNDER §1 OF THE CIVIL

RIGHTS ACT OF 1871 TO INCLUDE STATES

OR ITS OFFICERS IN THEIR OFFICIAL

CAPACITIES.

In construing the meaning of words in a statute, this

Court has indicated in the past that the plain and ordi-

nary understanding of that language should be employed.

Perrin v. U.S., 444 U.S. 37, 42 (1979). The term ‘‘person’’

in 42 U.S.C. § 1983 within the context of this case, however,

is unclear and ambiguous. Therefore, reliance on any pur-

ported plain meaning of the term ‘‘person’’ is of no use.

In order to determine congressional intent as to the mean-

ing of that word, resort must be had to the principles of

statutory construction.‘ In particular, there are two prin-

ciples that are helpful in this instance.

First, this Court has indicated on a number of occa-

sions that in construing acts of Congress, courts may look

to the history of the times when the legislation was en-

acted to ascertain the reason as well as the meaning of

particular provisions. U.S. v. Champlin Refining Co.,

341 U.S. 290, 292 (1951); Civil Aeronautics Board v. Delta

Air Lines, Inc., 367 U.S. 316, 323 (1961). Likewise, this

Court has indicated in other contexts that whether the

terms “person” or “corporation” in a statute include a

state or the United States, depends upon the context of the

legislative environment. Georgia v. Evans, 316 U.S. 159,

161 (1942); Ohio v. Helvering, 292 U.S. 366, 370 (1934).°

° Although the petitioner indicates in the opening argument

of his brief that the meaning of the term person in § 1983 is “a

matter of ordinary statutory construction’, no reference to any

rules of statutory construction are made by the petitioner. Ra-

ther, the petitioner simply launches into a lengthy general dis-

cussion of the debate surrounding the enactment of the Civil

Rights Act of 1871 interspersed with quotations from Senators

and Representatives concerning the authority of Congress to

enact §§ 2-6 of the Act which are of no value in determining

congressional intent as to the meaning of “person” in 1 of the

Act. Petitioner's Brief, pp. 9-22.

$ In applying these rules of statutory construction to the term

“person” as originally enacted in 1871, the amici states rely

(Continued on following page)

The second pertinent rule of statutory construction is

that statements by legislators are not controlling as to

statutory intent. Chrysler Corp. v. Brown, 441 U.S. 281,

311 (1979). More specifically, this Court has indicated

that oral testimony of congressmen during legislative de-

bates, unless very precisely directed to the intended mean-

ing of particular words in a statute, can seldom be ex-

pected to be as precise as the language of the statute it-

self. Regan v. Wald, 468 U.S. 222, 237 (1984). Thus, un-

less the statements of members of Congress during legis-

lative debates as to the meaning of a particular word are

specific to that word, those statements are of little value

in ascertaining congressional intent.

In applying the first principle of statutory construe-

tion to 41 of the Civil Rights Act of 1871, a diseussion

of the original purpose for § 1 will aid this Court in under-

standing why the 42nd Congress never intended states or

their officers to be considered persons under that enact-

ment. More importantly, a historical review of the doc-

trine of sovereign immunity from its origins in England

to the mid-19th century in America, provides compelling

evidence that the 42nd Congress could never have in-

tended states or their officers to be subject to suit in

either state or federal court under §1 of the Civil Rights

Act of 1871.

(Continued from previous page)

upon the state of the law as to sovereign immunity and the

Eleventh Amendment as it existed at that time. Accordingly,

references to post-1871 cases are omitted in this portion of the

argument. However, subsequent decisions of this Court support

amici states’ position that the 42nd Congress did not intend

states or the officers to be “persons” under §1 of the Civil

Rights Act of 1871. See, infra, pp. 16-22.

In the years following the Civil War, lawlessness in

the states of the old Confederacy was rampant. At the

center of this chaos was the Ku Klux Klan, which

harassed and murdered both black persons and those

white persons whose sentiments lay with the Union. By

1871, President Ulysses S. Grant knew that the federal

government would have to take action. Thus, on March

23, 1871, President Grant sent the following message to

Congress:

A condition of affairs now exists in some of the

states of the Union rendering life and property in-

secure, and the carrying of the mails and the collection

of the revenue dangerous. The proof that such a con-

dition of affairs exists in some localities is now before

the Senate. That the power to correct these evils is

beyond the control of the state authorities I do not

doubt; that the power of the executive of the United

States, acting within the limits of existing laws, is suf-

ficient for present emergencies is not clear. Therefore,

I urgently recommend such legislation in the judg-

ment of Congress shall effectively secure life, liberty,

and property in the enforcement of law in all parts

of the United States. (Emphasis added).

Congressional Globe, 42nd Cong., Ist Sess. 236 (1871)

(Cong. Globe).

It should be remembered that by the time of Presi-

dent Grant’s message in 1871, the Thirteenth, Fourteenth,

and Fifteenth Amendments had been adopted; moreover,

Congress had enacted the Civil Rights Act of 1866, the

Enforcement Act of 1870, and the Enforcement Act of

1871. However, President Grant in the language of his

message, felt that an emergency situation existed in the

South which needed additional federal legislation. Presi-

dent Grant’s reference to the lack of control by state

authorities is further supported throughout the debates

by examples of where state authorities, including state

courts, were unwilling or unable to control the lawlessness.

In that regard, Representative Stoughton stated the fol-

lowing :

The whole South, Mr. Speaker, is rapidly drifting

into a state of anarchy and bloodshed, which renders

the worst government on the face of the earth re-

spectable by way of comparison. There is no security

for life, person, or property. The state authorities and

local courts are unable or unwilling to check the evil

or punish the criminals.

Cong. Globe, 321 (1871) (Rep. Stoughton).

Congressional reaction to these horrors was the

enactment the Civil Rights Act of 1871, also known as the

Ku Klux Klan Act. Sections 2 through 6 of the Act dealt

specifically with the emergency situation in the South.

More specifically, § 2 of the Act made it a crime for two

persons to conspire together to violate the civil rights of

another person.®

On the other hand, § 1 of the Act was simply the civil

version of the provision in the Civil Rights Act of 1866

which made it a crime for any person under color of law

to violate the civil rights of another person. § 2, Civil

Rights Act of 1866; §17 Enforcement Act of 1870. In

particular, 41 of the Civil Rights Act of 1871 provided

the following:

ad In fact, most of the debates relating to the Civil Rights Act

of 1871 concerned whether Congress had the authority to enact

such a provision. Monell v. Dept. of Social Services, 436 U.S.

658, 667 (1978).

That any person who, under color of any law,

statute, ordinance, regulation, custom, or usage of any

state shall subject or cause to be subjected any per-

son within the jurisdiction of the United States to the

deprivation of any rights, privileges, or immunities

to which, as such citizens, he is entitled under the

Constitution or the laws of the United States, shall,

any such laws, statute, ordinance, regulation, cus-

tom or usage of the state to the contrary notwith-

standing be liable to the party injured in an action at

law, suit in equity or other proper proceeding for

redress; such proceeding to be prosecuted in the

several district or circuit courts of the United States,

ete.

It is quite clear that Congress intended to provide in-

dividuals who were victims of civil rights deprivations in

the South with a civil remedy in federal court. State

court judges were unwilling or unable to provide relief to

these victims; accordingly, Congress vested jurisdiction to

enforce these rights with federal courts.’ In establishing

this new remedy, did Congress intend that individuals

could bring suits under §1 against a state or its officers

in their official capacities?

The answer to this question lies in a historical review

of the development of sovereign immunity and the

Eleventh Amendment. The common law doctrine of sov-

ereign immunity originated in England under the simple

principle that ‘‘the king could do no wrong’’. Accordingly,

7 ‘It appears that Congress originally intended federal juris-

diction in 1871 to be exclusive. Smith v. Dept. of Public Health,

410 N.W.2d at 755 (Brickley, j., concurring). Why would Con-

gress have intended states or their officers to be ‘persons’ for

purposes of § 1983 actions in state court when state courts

originally had no jurisdiction to hear § 1983 claims?

the king could not be sued in his own courts without his

consent. Chisholm v. Georgia, 2 Dall. 419, 437-46 (1794)

(Iredell, J., dissenting).

The ratification of the Constitution in 1788 established

the federal court system and authorized the federal judici-

ary to entertain actions involving the states, but only in

the following circumstances :

The judicial power shall extend to all cases, in

law and equity, arising under this Constitution, the

laws of the United States, and the treaties made, or

which shall be made under their authority—to all

cases effecting ambassadors, other public ‘ministers

and counsuls; to all cases of admirality and maritime

jurisdiction; to controversies to which the United

States shall be a party; to controversies between two

or more states; between a state and citizens of another

state; between citizens of different states; between

citizens of the same state claiming lands under grants

of different states and between a state or the citizens

thereof and foreign states, citizens or subjects.

U.S. Const., Art. III, § 2.

The question arose as to whether the language ‘‘con-

troversies between a state and citizens of another state’’

authorized federal courts to entertain lawsuits filed by a

citizen of one state against another state. This question

was answered in the case of Chisholm v. Georgia, 2 Dall.

419 (1794) in which this Court held that the State of Geor-

gia was subject to a suit by a citizen of the State of South

Carolina for a revoluntionary war debt. In essence, this

Court recognized the sovereignity of the State of Georgia:

however, when the State of Georgia ratified the Constitu-

tion, it agreed to the terms of the Constitution which in-

cluded federal jurisdiction over actions by citizens of one

state against another state. In other words, the Constitu-

tion, by its express terms, abrogated state common law

sovereign immunity. The immediate reaction to the

Chisholm decision in this country was the adoption of the

Eleventh Amendment which, in effect, overturned that de-

As for the sovereign immunity of a state in its own

courts, the common law principle was carried from Eng-

land to America during the 19th century. By 1871, a num-

ber of state courts held that the state could not be sued in

its own courts without its consent.* Interestingly enough, a

number of states even embedded the doctrine of sovereign

immunity into their own constitutions during the 19th cen-

tury. Most of these state constitutions provided that suits

could be brought against the state only in such manner and

in such courts as the state legislature provided.’

More significantly, this Court recognized the common

law doctrine of state sovereign immunity to bar suits

against states without their consent in all courts. In par-

ticular, Justice Taney stated:

8 Turner v. State, 27 Ark 337 (1871); Hunsaker v. Borden,

5 Cal. 288 (1855); Tracy v. Hornbuckle, 8 Bush 336 (Ky. 1871);

ae 9 Se Se (1862) ; Michigan State Bank v. Hast-

ings, 1 Dougl. ‘225 (Mich. 1844); Myers v. Zanesville and M.

Turnpike Co., 11 Ohio 273 (1842); Williams v. Register, 3 Tenn.

214 (1812); Marshall v. Clark, 22 Tex. 23 (1858).

9 Arkansas—Art. |, §17 (1868); California—Art. XI, §11

(1849); Indiana—Art WV, § 24 (1851); Vill, §6

(1850) ; Pennsylvania—Art. IX, §11 (1838); Carolina—Art.

XIV, §4 (1868); Tennessee—Art. |, § 17 (1870). A few states

even prohibited their constitutions, any suits against the

a See Alabama—Art. |, § 15 (1875); Illinois—Art. IV, § 26

(1870); West Virginia—Art. Vi, § 35 (1845).

It is an established principle of jurisprudence in

all civilized nations that the sovereign cannot be sued

in its own courts, or in any other, without tis consent

and permission; but it may, if it thinks proper, waive

this privilege, and permit itself to be made a defen-

dant in a suit by individuals or by another state. (Em-

phasis added).

Beers v. Arkansas, 61 U.S. 991, 992 (1858).

Thus, by 1871, it was generally accepted that states

could not be sued in federal or state court without their

consent.’ The Eleventh Amendment and more importantly,

the common law doctrine of state sovereign immunity bar-

red such suits, with the exception of those suits expressly

authorized by the Constitution, te. states against states.

Moreover, until Reconstruction, Congress had yet to enact

any legislation granting jurisdiction to federal courts to

hear cases involving federal questions, much less any ex-

plicit authority to entertain actions against states or their

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

234, 290 (Brennan, J., dissenting). The enactment of

§ 1983 authorized federal courts to hear civil cases involv-

ing deprivation of constitutional rights; however, since

states could not be sued in either state or federal court be-

cause of state sovereign immunity and the Eleventh

Amendment, it is diffieult to conceive that Congress in-

tended to abrogate the sovereign immunity of states—

1 ~—s It must also be remembered that the fiction of a “state

official in his/her official capacity” was not judicially recog-

nized until 1908 by this Court in Ex Parte Young, 209 U.S. 123

(1908); therefore, a suit against a state official in 1871 had no

effect on a state’s sovereign immunity.

either common law or Eleventh Amendment—by the use of

the ambiguous term “person”."'

Secondly, amici states contend that oral testimony of

congressmen during legislative debates, unless very

precisely directed to the intended meaning of particular

words, are of little value in determining the meaning

of those words. None of the legislators’ statements

cited by the petitioner in his brief provide any aid at

all in determining whether Congress intended states to fall

within the definition of ‘‘person’’ under 41 of the Civil

Rights Act of 1871. In fact, most of the cited statements in

the petitioner’s brief relate to arguments made by con-

gressmen regarding the authority of Congress to enact

§§ 2 through 6 of the Civil Rights Act of 1871. The lack of

testimony regarding §1 could not be a basis for relying

upon testimony of other sections in the Act in attempting

to determine the meaning of the term ‘‘person”’ in § 1.

The petitioner also claims that since ‘‘Congress con-

sidered a state to be a corporation, it understood that rem-

edies against state officers implicated the state."’ Peti-

tioner’s Brief, p. 17. This argument relies on general

"~—sOf -course, this Court’s decision in Hans v. Louisiana, 134

U.S. 1 (1890), clearly established the Eleventh Amendment as a

bar to actions against states in federal court. Even though the

language of the Eleventh Amendment technically only reversed

the Chisholm decision, the Hans Court was correct in conclud-

ing that “can we suppose that when the [leventh Amendment

was adopted, it was understood to be left open for citizens of

the state to sue their own state in federal courts while the idea

of suits by citizens of other courts or of foreign states was in-

dignantly repelled?” Jd. at 15. It is arguable that instead of

broadening the 11th Amendment, Hans in fact recognized the

applicability of the common law doctrine of state sovereign

immunity to federal courts. See Hans v. Louisiana, 134 US.

(Continued on following page)

statements of individual legislators which are not controll-

ing as to legislative intent. Moreover, amici states would

assert that it was well established early in this country’s

history that states were generally not considered corpora-

tions. In his dissent in Chisholm, Justice Iredell stated the

following :

The differences between such corporations, and

the several States in the Union, as relative to the gen-

eral Government, are very obvious in the following

particulars. Ist. A corporation is a mere creature of

the King, or of Parliament. It owes its existence, its

name, and its laws, to the authority which create it.

A State does not owe its origin to the Government of

the United States, in the highest or in any of its

branches. It was in existence before it. it derives its

authority from the same pure and sacred source as

itself: The voluntary and deliberate choice of the

people. 2d. A corporation can do no act but what is

subject to the revision either of a Court of Justice,

or of some other authority within the Government.

A State is altogether exempt from the jurisdiction

of the Courts of the United States, or from any other

exterior authority, unless in the special instances

were the general Government has power derived

from the Constitution itself. 3d. A corporation

is altogether dependant (sic) on that Government

to which it owes its existence. Its charter may

be forfeited by abuse. Its authority may be anni-

hilated, without abuse, by an act of the Legislative

body. A State, though subject in certain specified

particulars to the authority of the Government of the

United States, is in every other respect totally inde-

pendent upon it. The people of the State created, the

at 21 (Harlan, j., concurring) (Suit di against a state by

one of its own citizens is not one to which the judicial power

of the United States extends, unless the state itself consents to

be sued.)

people of the State can only change, its Constitution.

Upon this power there is no other limitation but that

imposed by the Constitution of the United States; that

it must be of the republican form.

Chisholm v. Georgia, 2 Dall. at 446.

The debates of the 42nd Congress are of little aid

in determining the meaning of the term “person”. How-

ever, when the Civil Rights Act of 1871 is placed in its

historical context, the answer becomes apparent. Con-

gress vested exclusive jurisdiction of 41 with the federal

courts due to the inability of state courts to act in the

face of the lawlessness instigated by the Ku Klux Klan

in the South. There was no clearly expressed intention by

Congress that 41 apply to the states, meaning that sov-

ereign immunity was not abrogated. Thus, since it was

impossible to obtain relief against the state, it is doubtful

that Congress intended for 41 to apply to states without

enactment of the Civil Rights Act of 1871, it is the position

of the amici states that these decisions support the view

that Congress did not intend the term “‘person”’ to include

a state or its officers acting in their official capacity. As

e Amici states agree that § 5 of the Fourteenth Amendment

authorized Congress to abrogate state sovereign immunity.

itzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). However, amici

states contend that § 1 does not abrogate such immunity. Cf.

Quern v. jordan, 440 U.S. 332 (1979).

has already been discussed, the definitional issue of the

term ‘‘person’’ is inextricably intertwined with state sov-

ereign immunity and the Eleventh Amendment. At the

time of the enactment of the Civil Rights Act of 1871,

states could not be sued without their consent in any court

under the common law doctrine of state sovereign immun-

ity and the Eleventh Amendment. Subsequent decisions

of this Court support the conclusion that Congress did not

intend to expressly abrogate Eleventh Amendment immun-

ity or state common law sovereign immunity for that

matter."

In Quern v. Jordan, 440 U.S. 332 (1979), Chief Justice

Rehnquist writing for the majority” stated the following:

We are simply unwilling to believe, on the basix

of such slender ‘evidence’ that Congress intended by

the general language of § 1983 to override the tradi-

tional sovereign immunity of the states.

Id. at 342. See also Edelman v. Jordan, 415 US. 651,

676-77 (1974).

The petitioner argues that the standard for determin-

ing whether the state is a “‘person’’ under § 1983 is dif-

ferent and lesser than the requirement that abrogation of

the Eleventh Amendment must be clearly expressed in the

statute. Based upon this argument, the petitioner con-

cludes that ‘‘deciding that a state is a person under § 1983

3 The principle that Eleventh Amendment i ity must be

— v. Texas Dep't. of Highways, 107 S.Ct , 2945-46

as Chief justice Rehnquist's statement was in response to

v. Jordan, 415 U.S. 651 (1974) that § 1983 does not abrogate the

state's Eleventh Amendment immunity “is

id. at 340.

in no way affects its Eleventh Amendment immunity or

the validity of this Court’s decision Quern v. Jordan”.

Petitioner’s Brief, p. 36.

This argument ignores the fact that the Eleventh

Amendment and state sovereign immunity are intertwined

with the definitional issue of ‘‘person’’ under 4 1983.

Since Congress did not intend to expressly abrogate the

Eleventh Amendment by the enactment of § 1 of the Civil

Rights Act of 1871, then it follows that it also did not in-

tend to abrogate any common law state sovereign immun-

ity in state court at the time of the enactment in 1871. It

must be remembered that in 1871, states could not be sued

in any court without their consent unless there was an ex-

press constitutional or congressional abrogation of state

sovereign immunity. Moreover, amici states have been

unable to find any state laws at the time of the enactment

of the Civil Rights Act of 1871 that consented for a state

to be sued for any similar cause of action. Why would

Congress have intended states or their officers to be con-

sidered ‘‘persons’’ if no remedy could be obtained in either

federal or state court?

Although this Court in Monell v. Dept. of Social Serv-

ices, 436 U.S. 658 (1978) held that municipalities were per-

sons for purposes of § 1983, that conclusion does not sup-

port petitioner’s contention that states or their officers

were also intended to be ‘‘persons’’ under 42 U.S.C.

§ 1983.5 Much of Justice Brennan’s majority opinion in

1$ Petitioner argues that in Monell this Court held that, ab-

sent a clear statement that § 1983 should not apply to municipal

corporations, then there was no justification for excluding them.

Petitioner then cites a number of other decisions of this Court

for the proposition that such a principle also applies to states.

(Continued on following page)

Monell focuses upon the Sherman amendments to the Civil

Rights Act of 1871 as related to municipalities. In partic-

ular, Justice Brennan, in overruling Monroe v. Pape, 365

U.S. 167 (1961) made an in-depth review and analysis of

the Sherman amendments.

The Sherman amendments would have held a munic-

ipal corporation liable for damage done to the person or

property of its inhabitants by private persons who rioted.

Cong. Globe, 749 (1871). By rejection of these amend-

ments, the Court in Monroe concluded that Congress had

decided that it had ‘‘no constitutional power to impose any

(Continued from previous page)

Petitioner's Brief, pp. 23-24. Such analysis ignores two points.

First, the circumstances surrounding the enactment of § 1 of the

Civil Rights Act of 1871 indicate that the 42nd Congress did not

intend for states or their officers to be covered. See, supra, pp.

7-14. Second, the cases cited by the petitioner involve circum-

stances where a state engages in an activity regulated by Con-

gress pursuant to express constitutional authority. U.S. v. Cali-

fornia, 297 U.S. 175, 185 (1936) (California, by engaging in inter-

state commerce by rail has subjected itself to the commerce

power); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S.

275, 278-79 (1959) (By entering into a compact to sue and be

sued; joint commission of Tennessee and Missouri subjected

itself to suit); California v. Taylor, 353 U.S. 553, 568 (1957) (Again

California engaging in interstate commerce); Parden v. Terminal

Railway of Alabama, 377 U.S. 184, 193 (1964) (By operating a

railroad, Alabama came under the Federal Employer's Liability

Act). In each of these cases, the state engaged in an activity

regulated by Congress, pursuant to express constitutional author-

ity and, thereby, waived any sovereign immunity. On the other

hand, the present case does not involve a federal regulatory

scheme over a legitimate activity, i.e. operation of a railroad as

it affects interstate commerce, in which a state may or may not

engage; rather, Congress, under § 1983 prohibits certain con-

duct which deprives persons of their constitutional rights by per-

mitting the victim to bring suit against the person who did such

harm. There is no legitimate conduct in which a state could

engage in order to bring it under the purview of the Civil Rights

Act. Thus, these cases are inapplicable.

obligation upon county and town organizations, the mere

instrumentality for the administration of state law.’’

Monroe v. Pape, 365 U.S. at 190. Justice Brennan refutes

this view in Monell by showing that Congress’ rejection of

the Sherman amendments had no effect upon §1 of the

Civil Rights Act of 1871; therefore, the conclusion of the

court in Monroe was incorrect.

The petitioner’s attempt to apply the debates of the

Sherman amendments to the question of whether Con-

gress intended states to be persons under 41 of the Civil

Rights Act of 1871, ignores the fact that states, unlike

municipalities, are clothed with Eleventh Amendment im-

munity. Without such immunity, §1 of the Civil Rights

Act of 1871 can be applied to municipalities without the

necessity of express abrogation of the Eleventh Amend-

ment. On the other hand, in the absence of express abro-

gation of Eleventh Amendment or state common law

sovereign immunity by Congress, no remedy was avail-

able against the State or its officers in 1871. Thus, the

debates of the Sherman amendments are of little help

on this issue.

Application of the prospective compliance exception

in Ex parte Young, 209 U.S. 123 (1908) to § 1983 cases

involving injunctive relief against state officials in their

official capacity"® does not mean that state officers acting

in their official capacity are “persons” under § 1983. In Ex

parte Young, this Court created a judicial exception to

ed In Hutto v. Finney, 437 U.S. 678 (1979), this Court stated

that “although prohibited from giving orders directly to a State,

federal courts could enjoin state officials in their official ca-

pacities.” Id. at 690.

the doctrine of sovereign immunity where prospective in-

junctive relief was to be afforded against a state official

to compel him to comply with the Constitution. In par-

ticular, this Court stated the following:

The act to be enforced is alleged to be unconstitu-

tional; and if it be so, the use of the name of the

state to enforce an unconstitutional act to the injury

of complainants is a proceeding without the author-

ity of, and one which does not affect, the state in its

sovereign or governmental capacity. It is simply an

illegal act upon the part of a state official in at-

tempting, by the use of the name of the state, to en-

force a legislative enactment which is void because

unconstitutional.

Td. at 159.

Thus although suits requesting prospective injunctive

relief may be brought against state officials, such suits in

reality are not suits against the state but suits to compel

that an official conform his or her conduct to the consti-

tution. Ex Parte Young also created a legal fiction in

which the state official was enjoined in his or her official

capacity in order to ensure compliance with the order

by that particular individual’s successors. However, this

Court was careful in Ex Parte Young to note that such

an action would not offend the sovereignty of the state.

Id. In any event, this judicially created legal fiction was

not in existence in 1871; therefore, its application to 4 1983

cases must be done with the recognition that such equity

suits are not in reality against the state but against the

individual.

This Court has also indicated in Ford Motor Co. v.

Indiana Dept. of Treasury, 323 U.S. 459 (1945) that when

a lawsuit is “in essence one for the recovery of money

from the state, the state is the real, substantial party in

interest and is entitled to invoke its sovereign immunity

from suit even though individual officials are nominal

defendants.” Jd. at 464° Thus, a suit against a state

official for money damages which seeks funds from the

state treasury is, a suit against the state. If the 42nd

Congress did not intend states to be persons under §1

of the Civil Rights Act of 1871, in light of the Eleventh

Amendment and common law doctrine of sovereign im-

munity, then the seme conclusions would apply to actions

for money damages against state officials which seek

funds from a state treasury.

— =

CONCLUSION

Based upon the foregoing authorities and analysis,

the amici states urge this Court to affirm the decision

of the Michigan Supreme Court.

Respectfully submitted,

W. J. Micnae. Copy

Attorney General and Reporter

State of Tennessee

*Micnaet W. Catalano

Deputy Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

(615) 741-3499

More recently, this Court reaffirmed this principle in

Kentuely V. "— 474 U.S. 170 (1985) (Attorneys cannot re-

1983 fees against the state where settlement was

reached —~ the Kentucky State Police Commissioner be-

cause the settlement was against him in his individual capacity,

not _— capacity, which is barred by the Eleventh Amend-

men

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.