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

In THE

Supreme Court of the United States

OCTOBER TERM, 1987

Ray WILL,

Petitioner,

MICHIGAN DEPARTMENT OF STATE POLICE,

AND DIRECTOR OF MICHIGAN STATE POLICE,

Respondents.

On Writ of Certiorari to the Supreme Court

of the State of Michigan

BRIEF FOR LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW,

MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND,

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE,

THE MICHIGAN TRIAL LAWYERS ASSOCIATION,

MICHIGAN LEGAL SERVICES,

AND CENTER FOR CONSTITUTIONAL RIGHTS,

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Of Counsel:

CONRAD K. HARPER

STUART J. LAND

NORMAN REDLICH

WILLIAM L. ROBINSON

JupITH A. WINSTON

LAWYERS’ COMMITTEE FOR

CiviL Ricuts UNpER LAW

ANTONIA HERNANDEZ

E. RICHARD LARSON

MEXICAN AMERICAN

L®&GAL DEFENSE AND

EDUCATIONAL FUND

WILLIAM A. BRADFORD, JR.*

STEVEN J. ROUTH

HELENE O. Cops

HOGAN & HARTSON

Columbia Square

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

* Counsel of Record for

Amici Curiae

Witson - Eres Printing Co., Inc. - 789-0086 - WasHincTron, D.C. 20001

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE 0...

SUMMARY OF ARGUMENT ..................................

ON

I. THE LEGISLATIVE HISTORY AND HISTOR-

ICAL CONTEXT OF THE CIVIL RIGHTS

ACT OF 1871 DEMONSTRATE THAT THE

42D CONGRESS INTENDED STATES AND

STATE OFFICIALS TO BE INCLUDED

WITHIN THE MEANING OF “PERSON” UN-

I ae

A. The legislative history of the 1871 Act dem-

onstrates that Congress intended to exercise

its full power under Section 5 of the Four-

teenth Amendment to provide a broad civil

remedy against states for noma of fed-

eral rights . =

B. The historical | quntent of the 1871 Act eine

demonstrates that Congress intended to pro-

vide a direct and comprehensive remedy

ee er oo ae eee ee

INCLUDING STATES WITHIN THE DEFI-

NITION OF “PERSON” UNDER SECTION

19838 FULFILLS THE PURPOSE OF THE

42D CONGRESS TO REMEDY DEPRIVA-

TIONS OF FEDERAL RIGHTS UNDER

COLOR OF STATE LAW THROUGH ADE-

QUATE COMPENSATION AND EFFEC-

ee

A. States must be “persons” under Section 1983

to ensure that compensation for victims of

federal rights violations under color of state

law is available, adequate, and fair .__..

B. States must be “persons” under Section 1983

to ensure efficient deterrence of federal rights

violations = EEE ER eee

CONCLUSION ..................... cmmenesions a a

APPENDIX neneneneeEEENE a —

13

» 8%

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued

CASES: Page Page

Alabama Vv. Pugh, 438 U.S. 781 (1978) 10 Rizzo v. Goode, 423 U.S. 362 (1976) _......... 23

Allen ¥. McCurry, 449 U.S. 90 (1980) 10 Robertson Vv. Wegmann, 436 U.S. 584 (1978) ...... 28

Bank of the United States v. Planters’ Bank, 22 ee Sow Was SES (206) —_____ =

U.S. (9 Wheat.) 904 (1824). . Smith v. Department of Pub. Health, 428 Mich.

Barron V. Mayor and City Council of Baltimore, ae SP SS FED (18ST) :

32 U.S. (7 Pet.) 243 (1833) . 17 United States v. Price, 383 U.S. 787 (1966) - 16

Brown Shoe Co. Vv. United States. ‘370 Us. ‘294 United States v. Zazove, 334 U.S. 602 (1948) snenie 19

(1962) be a 11 Viandis Vv. Kline, 412 U.S. 441 (1973) 0... 10

- — ~~ as US 98 om — am 7 CONSTITUTION AND STATUTORY PROVISIONS:

m reorg

The Civil Rights Cases, 109 U.S. 3 (1883) «5, 17 Constitution of the United States:

Clark V. Barnard, 108 U.S. 436 (1883). Eleventh Amendment ...._______........3, 4, 8, 10

Edelman V. Jordan, 415 U.S. 651 (1974) 3, 8, 12 _ _ Thirteenth Amendment ._. 6, 14

Ex parte Virginia, 100 U.S. 339 (1880) 5,17 Fourteenth Amendment — 0... passim

Ex parte Young, 209 U.S. 123 (1908) 0 12, 20 Fifteenth Amendment 6, 14

Fair Assessment in Real Estate Ass'n Vv. McNary, Civil Rights Act of 1866, 14 Stat. 27 6, 11, 14, 16, 17, 18

GEG US. BED CIID cece 9 Enforcement Act of 1870, 16 Stat. 140 13

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 4 Civil Rights Act of 1871, 17 Stat. 13 4, 5, 7, 8, 9, 10, 16

Ford Moter Co. ¥. Department of vines 323 42 U.S.C. § 1983 .. iiieistiibiistittastnenesstssncesccccossondGGeD

U.S. 459 (1945) eae 3 42 U.S.C. § 1988 anaes SE 22

Griffin Vv. School Bd... 377 v Ss. 218 (1964) - —— 10

Harlow V. Fitzgerald, 457 U.S. 800 (1982) 21 LEGISLATIVE MATERIALS:

Howell v. Cateldi, 464 F.2d 272 (3d Cir. 1972) _. 23 S. Rep. No. 1011, 94th Cong., 2d Sess... 22

Jones V. Alfred H. Mayer Co. 392 US. 409 . Cong. Globe, 42d Cong., Ist Sess. 0 passim

| | a 15 Cong. Globe, 39th Cong., Ist Sess... _.... passim

Kentucky V. Graham, 473 U.S. 159 22

Lincol’ County V. Luning, 133 U.S. 529 (1890) 4 OTHER AUTHORITIES:

Maine V. Thiboutot, 448 U.S. 1 (1980) 4, &, 9, 10, 12 Gressman, The Unhappy History of Civil Rights

Martinez V. California, 444 U.S. 277 (1980) 9, 10 Legislation, 50 Mich. L. Rev. 1323 (1952) 14

Monell Vv. Department of Social Services, 436 U.S. Hart & Wechsler, Hart & Wechsler’s The Federal

os | RR ‘passim Courts and the Federal System (2d ed. 1973) __. 9

Cowen V. City of Independence, 445 US. 622 R. Kaczorowski, The Politics of Judicial Interpre-

(1980) passim tation: The Federal Courts, Department of Jus-

Patsy Vv. Board of Regents, 437 uv s 496 (1982). a9 tice and Civil Rights, 1866-1876 (1985) 9

Pierson V. Ray, 386 U.S. 547 (1967) . ae 79,21 Newman, Suing the Lawbreakers: Proposals to

Poinderter V. Greer bow, 114 U.S. 270 (1885), ve 29 Strengthen the Section 1983 Damage Remedy for

Quern v. Jordan, 440 U.S. 382 (1979) 3, 7, 15, 16 — Misconduct, 87 Yale L. J. 447

eI aiasidiieseeethinteestesesetenconsconsaseccncsesosces 9, 24

iv

TABLE OF AUTHORITIES—Continued

Page

Note, Amenability of States to Section 1983 Suits:

Reexamining Quern v. Jordan, 62 B.U.L. Rev.

731 (1982) ...... scence isieacaidietaiaiiaaasaaatamaenediiimata 7

Note, Section 1983 and Federalism, 90 Harv. L.

Lee 9

2A C. Sands, Sutherland Statutory Construction,

ae 19

P. Schuck, Suing Government: Citizen Remedies

for Official Wrongs (1983) ............----.---------0++- = 24

Restatement of Torts § 944(2) (1939) .................... 27

Steinglass, The Emerging State Court 1983 Ae-

tion: A Procedural Review, 38 U. Miami L. Rev.

BD GR cccccocencc~evensiccinitinessicennaiittigaiinmsiaiiisiait eS eas 9

Wolcher, Sovereign Immunity and the Supremacy

Clause: Damages Against States in Their Own

Courts for Constitutional Violations, 69 Calif.

L. Rev. 189 (1981) -.......... saidanihitiaieiniinisiatleainaiaittiatiaial 20, 23, 24

Zagrans, Under Color of What Law: A Recon-

structed Model of Section 1983 Liability, 71 Va.

Rn, Bae, GP CID cnceccccnsnnseitecensccnsensenmnssdeteinmiucenes 7,15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-1207

RAY WILL,

- Petitioner,

MICHIGAN DEPARTMENT OF STATE POLICE,

AND DIRECTOR OF MICHIGAN STATE POLICE,

Respondents.

On Writ of Certiorari to the Supreme Court

of the State of Michigan

BRIEF FOR LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW,

MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND,

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE,

THE MICHIGAN TRIAL LAWYERS ASSOCIATION,

MICHIGAN LEGAL SERVICES,

AND CENTER FOR CONSTITUTIONAL RIGHTS,

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE'

The resolution of this case will have a significant im-

pact upon the extent to which those who are injured by

the unconstitutional actions of states and state officials

' The parties have consented to the filing of this brief and their

letters of consent are being filed with the Clerk of this Court pursu-

ant to Rule 32.2. A description of amicus organizations and a state-

ment of their interests appear in the Appendix hereto.

can secure complete relief. Plaintiffs’ ability to name

states as defendants in state court actions and to seek

appropriate relief from states where their policies have

infringed on federal rights is important both to permit-

ting effective litigation and to achieving Amici’s broader

purpose of deterring unlawful state conduct.

SUMMARY OF ARGUMENT

In resolving the important issue of statutory interpre-

tation presented by this case, the Court must look to evi-

dence of the congressional intent in enacting 42 U.S.C.

§ 1983. First, the legislative history demonstrates that

Congress intended Section 1983 to provide a comprehen-

sive civil remedy that would protect against the full

range of conduct prohibited by the Fourteenth Amend-

ment. Because the substantive protections of the Four-

teenth Amendment are directed specifically against the

states and state conduct, the remedial provisions of Sec-

tion 1983 created to enforce those protections by neces-

sity also must be directed against the states. That con-

clusion is supported further by the larger historical con-

text in which Congress enacted Section 1983, a context

which makes clear that Congress intended Section 1983

to be part of a constitutional and statutory scheme man-

dating respect for federal civil rights both by states as

well as by individuals.

Second, Section 1983 must be interpreted consistent

with the broad remedial purposes it was enacted to ac-

hieve. Congress clearly intended Section 1983 to serve

the dual purposes of providing just compensation to the

victims of federal rights violations and deterring such

violations in the future. Unless this Court reverses the

decision below and holds that states are “persons” an-

swerable for their own misconduct under Section 1983,

the dual purposes of the statute will be undermined and

the protection of federal rights will be left unsecured.

ARGUMENT

I. THE LEGISLATIVE HISTORY AND HISTORICAL

CONTEXT OF THE CIVIL RIGHTS ACT OF 1871

DEMONSTRATE THAT THE 42D CONGRESS IN-

TENDED STATES AND STATE OFFICIAIS TO BE

INCLUDED WITHIN THE MEANING OF “PERSON”

UNDER SECTION 1983.

The Michigan Supreme Court misunderstood the ques-

tion presented by this case. In holding that states and

state officials* are not “persons” within the meaning of

Section 1983, the Michigan Supreme Court confused the

definitional question of the scope of Section 1983 with

the Eleventh Amendment jurisdictional issue whether

federal courts are barred from presiding over Section

1983 actions in which states are named defendants.’ To

answer the definitional question presented here, this

Court should focus on the history and purpose of Section

1983, not on Eleventh Amendment jurisdictional consid-

2 Because a suit against a state agency or a state official in his

official capacity is for all practical purposes a suit against the state

itself, any reference in this brief to the state as a proper “person”

defendant under Section 1983, unless otherwise indicated, includes

state agencies and state officials acting in their official capacities.

See Edelman v. Jordan, 415 U.S. 651, 663 (1974) (state officials) :

Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945)

(state agency ).

* The source of this confusion is the Michigan Supreme Court's

reliance on this Court's decision in Quern v. Jordan, 440 U.S. 332

(1979). In Quern, the Court affirmed the holding of Edelman v.

Jordan, 415 U.S. 651 (1974), that Section 1983 did not remove the

Eleventh Amendment bar to actions against states in federal court.

440 U.S. at 341. The Eleventh Amendment concerns at issue in

Quern, however, are irrelevant in state court actions such as this

one. Indeed, as the court below itself at one point acknowledged:

“Quern .. . left without a definite answer the question whether it

intended the term ‘person’ to include states for purposes of Section

1983 actions in state courts in which the Eleventh Amendment would

not apply ....” Smith v. Department of Public Health, 428 Mich.

540, 571, 410 N.W.2d 749, 763 (1987).

4

erations that are wholly inapplicable to an action brought

in state court.*

This Court recognized the distinct nature of those

statutory interpretation and Eleventh Amendment ques-

tions in Monell v. Department of Social Services, 436

U.S. 658 (1978). There the Court determined that mu-

nicipalities were “persons” under Section 1983 by exam-

ining the legislative history of the Civil Rights Act of

1871 ‘“the 1871 Act”),’ Section 1 of which became 42

U.S.C. § 1983 (1979) (“Section 1983”). Jd. at 690 n.55."

That same legislative history demonstrates that the 42d

Congress also intended states to be “persons” within the

meaning of Section 1983. In light of Congress’ intent to

provide a broad compensatory and deterrent remedy for

violations of federally protected rights under color of

state law, any other interpretation of “person” would

seriously undermine the objectives of the statute.

A. The legislative history of the 1871 Act demonstrates

that Congress intended to exercise its full power

under Section 5 of the Fourteenth Amendment to

provide a broad civil remedy against states for

deprivations of federal rights.

1. Congress’ intent to include states and state offi-

cials within the definition of “person” under Sec-

tion 1983 is evident from the debates on the 1871

Act.

Section 1983 provides a cause of action against “every

person” who deprives another of a federal constitutional

* See Maine Vv. Thiboutot, 448 U.S. 1, 9 n.7 (1980) (“No Eleventh

Amendment question is present, of course, when an action is brought

in a state court since the Amendment by its terms restrains only

*[t}he judicial power of the United States.’”).

5 Act of Apr. 20, 1871, ch. 22, 17 Stat. 13.

* As in the instant case, Eleventh Amendment considerations were

not relevant to the Court's decision in Monell. See Monell, 436 U.S.

at 690 n.54. (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976):

Lincoln County Vv. Luning, 133 U.S. 529, 530 (1890) ).

5

or statutory right under color of state law.’ The 1871

Act, introduced in the House on March 28, 1871 as H.R.

320, was entitled “A Bill to Enforce the Provisions ot

the Fourteenth Amendment to the Constitution of the

United States and for Other Purposes” (“the Bill”).*

Representative Shellabarger, author of H.R. 320, and its

manager in the House, opened the debates on the Bill

with a speech on its scope. He explained that because the

Bill was enacted to enforce the provisions of the Four-

teenth Amendment, which were directed at the states,’

the Bill authorized a remedy against the states for vio

lations of the Amendment’s prohibitions. See Cong. Globe,

42d Cong., Ist Sess. App. 69 (1871). Otherwise, he rec-

ognized, the protections of the Fourteenth Amendment

would be “a miserable waste of words”:

If, after all this transcendent profusion of enactment

in restraint of the States and affirmative conferment

of power on Congress, the States still remained un-

restrained, . . . then not only is the profusion of

7 The 1871 Act contained six sections. Section 1, as reenacted in

1874 and subsequently codified in 42 U.S.C. § 1983, provides in perti-

nent part:

Every person who, under color of any statute, ordinance, regu-

lation, custom, or usage, of any State or Territory or the Dis-

trict of Columbia, subjects, or causes to be subjected, any citi-

zen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immuni-

ties secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other proper

proceeding for redress ....

42 U.S.C. § 1983 (1979) (emphasis added).

* Cong. Globe, 42d Cong., Ist Sess. 317 (1871). The 1871 Act was

one of a series of acts directed primarily at halting the increasing

violence in the South against recently emancipated slaves. See dis-

cussion of historical context infra at 1B.

*The language of the Fourteenth Amendment is specifically

directed to the states: “No State shall... .” U.S. Const. amend.

XIV, § 1. See, ¢.g., Ex parte Virginia, 100 U.S. 339, 546-347 (1880) ;

The Civil Rights Cases, 109 U.S. 3, 9 (1885). For further discussion

of the purposes of the Fourteenth Amendment, see note 35 tnfre.

guards put by the fourteenth

rights a miserable waste of words, but the Govern-

ment is itself a miserable sham,

curse, and the Union not fit to be.

Id. (emphasis added).

There was little congressional debate on of

the 1871 Act. The court below assumed that the lack of

objections from congressmen concerned about state sov-

ereignty indicated that the 42d Congress could not have

intended Section 1983 to encompass states and state

officials. That attempted reading of congressional silence

is unfounded and ignores the context surrounding the

discussions on Section 1983. Given that the other sections

of the 1871 Act and the previously enacted Civil Rights

Act of 1866 (“the 1866 Act”) " imposed penalties on

the states more severe than the civil remedy suggested

by Section 1 of the 1871 Act, Congress already had re-

solved itself to imposing obligations directly upon the

states."° When compared to the remedies authorized by

” See aleo Cong. Globe, 42d Cong., Ist Sess. 367-368 (1871) (Rep.

Sheldon) (“{T!hese amendments [ Thirteenth, Fourteenth and Fif-

teenth! enlarge the power of the Government in controlling the

action of the States, and 1 believe that it can extend its powers,

through its courts, in times of peace. directly to the individual

citizen who is deprived of his right«. privileges, and immunities,

whether chreugh the positive act or the default of the State authori-

ties.”) (emphasis added).

Act of Apr. 9, 1866, ch. 31, 14 Stat. 27.

12 The other sections of the 1871 Act imposed against the states

measures considered more stringent than simple money judgments.

For example, Section 2 imposed federal civil and criminal liability

on conspiracies within the states to catch state inhabitants who

were escaping conviction in state courts; Section % authorized the

President to call in federal troops to take over state functions, the

Sherman Amendment, proposed as Section 7, raised the possibility

of imposing vicarious liability on local governments for damages

caused by mob violence Furthermore, many members of the 42d

Congress had passed the Civil Rights Act of 1866 only five years

earlier, imposing criminal liability on state officials without regard

to whether they were exercising state power in good faith reliance

ll in the Senate,

ple” because it was “really reenacting the Constitution.”

Cong. Globe, 42d Cong., Ist Sess. 569 (1871).

In contrast, Congress extensively debated the proposed

Sherman Amendment to the 1871 Act, which would have

imposed liability for money damages on local govern-

ments for failing to enforce laws against private mis-

conduct and violence toward blacks. Debates over that

amendment reveal Congress’ general willingness to impose

liability on the states. The opponents of the Sherman

Amendment thought it was unfair to impose policing ob-

ligations upon municipalities, which only had police

powers to the extent given them by the states." As Rep-

resentative Willard, a Republican opposed to the Sherman

Amendment, but in favor of the 1871 Act, explained, if

anyone should be held liable for failing to control private

misconduct, it should be the states:

I hold that this duty of protection, if it rests any-

where, rests in the State, and that if there is to be

any liability visited upon anybody for a failure to

perform that duty, such liability should be brought

on state law-—a severe measure intent on crippling state governments

that were violating constitutional rights by deterring individuals

from enforcing unconstitutional laws. See 17 Stat. 1%; Zagrans,

Under Color of What Law: A Reconstructed Model of Section 1983

Liability, 71 Va. L. Rev. 499, 543-547 (1985).

1% Cong. Globe, 424 Cong., Ist Sess. 482 (1871) (Rep. Wilson).

As the Court recognized in Monell v. Depariment of Social

Services, 426 US. 658 (1978), objections to the Sherman Amend-

ment were motivated not by concerns with imposing monetary liabil-

ity on the municipalities for their own misconduct, but instead by

the unfairness of requiring municipalities to be insurers for all

harm caused by discriminatory conduct within their boundaries.

See Monell, 496 U.S. at 674 0.20; id. at 706 (Powell, J., concurring);

Note, Amenability of States to Section 1983 Suits: Reeramining

Quern v. Jordan, 62 B.U.L. Rev. 731, 737 (1982).

i

f

:

:

its justice and its constitutionality, if it p that

if in any State the offenses named in this section

were committed, suit might be brought against the

State, judgment obtained, and payment of the judg-

ment might be enforced upon the treasury of the

State.

Cong. Globe, 42d Cong., Ist Sess. 791 (1871) (emphasis

added }.

Moreover, contrary to the opinion below, there is no

reason to believe that Congress did not contemplate suits

against states when it enacted the 1871 Act. The 42d

Congress undoubtedly knew that a state could be subject

to suit in federal court if, it waived its Eleventh Amend-

ment immunity,’ or in state court, where the Eleventh

Amendment is inapplicable. Congress also knew that

Section 1983 actions could be brought in state court be-

cause the state courts possessed “concurrent power to en-

force the Constitution of the United States within their

respective limits... .” Patsy v. Board of Regents, 457

'® The concept of waiver of Eleventh Amendment immunity would

have been known to the 42d Congress. Waiver of immunity was dis-

cussed in opinions of this Court long before 1871. See Chisholm v.

Georgia, 2 U.S. (2 Dall.) 419, 442 (1793) (“[1}f the Prince gives

the subject leave to enter an action against him... in his own

Courts... ."). And various forma of waiver existed at the time.

See, «.9., Clark ¥. Barnard, 108 U.S. 436, 447 (1883) (entering a

general appearance constitutes waiver); Bank of the United States

Vv. Planters’ Bank, 22 U.S. (9 Wheat.) 904, 907-908 (1824) (giving

state bank capacity to sue and be sued constitutes waiver). Indeed,

waiver of Eleventh Amendment immunity would have been much

easier in 1871 than it is now. Compare Clark v. Barnard, 108 US.

436, 447 (1883) (despite the Eleventh Amendment, state's “appear-

ance in a court of the United States would be a voluntary submission

to its jurisdiction”), with Edelman v. Jordan, 415 U.S. 651 (1974)

(state allowed to raise Eleventh Amendment defense for first time

in court of appeals).

™ See Maine Vv. Thibouwtot, 448 U.S. 1, 9 0.7 (1980).

U.S. 496, 507 (1982) (quoting Cong. Globe, 42d Cong.,

Ist Sess. App. 85 (1871) ).""

In enacting the Civil Rights Acts, “Congress . . . ar-

ticulated a theory of national citizenship and federally

enforceable rights that assumed concurrent responsibility

and authority . . . to enforce and protect the civil rights

of Americans.” "* Congress was adding to the jurisdic-

" See also Cong. Globe, 42d Cong. Ist Sess. 661 (1871) (Sen.

Vickers). Concurrent jurisdiction over Section 1988 actions has

been recognized by this Court. Martinez v. California, 444 U.S. 277.

283-284 n.7 (1980) (Congress not barred from requiring state

courts to entertain Section 1983 actions); Maine v. Thibowtot, 448

U.S. 1, 3 n.1 (1980) (“Any doubt that state courts may also enter-

tain... [Section 1983) actions was dispelled by Martinez v. Califor-

nia”); see Fair Assessment in Real Estate Ass'n ¥. McNary, 454

U.S. 100 (1981) (Court relied heavily on availability of state court

Section 1983 action to support exclusion of certain Section 198%

damage actions from federal court). Evidence of Section 198%

actions in state courts prior to 1969 is sparse, however. Sre

Steinglass, The Emerging State Court § 1988 Action: A Procedural

Review, 38 U. Miami L. Rev. 381, 39% n.62. (1984).

™ R. Kaczorowski, The Politics of Judicial Interpretation: The

Federal Courts, Department of Justice and Civil Rights, 1866-1876,

p. 3 (1985). See Cong. Globe, 42d Cong., Ist Sess. 429 (1871) (Rep.

McHenry) (“[A)s a question of policy, .. . it is manifestly to the

best interests of the people that the State, through her courts, should

enforce the privileges and immunities guarantied [sic! by this

section. The Federal Government has but two or three courts in

any state, and in some only one. The contests among citizens under

this provision will be numerous, and it is a tyranny to drag people

hundreds of miles from their homes to have their cases tried before

courts ... where the facts will be determined by a jury of the

vicinage.”). See also Patey Vv. Board of Regents, 457 U.S. 496, 507

(1982) (citing Cong. Globe, 42d Cong., Ist Seas. App. 216 (1871)

(Sen. Thurman, member of Senate Judiciary Committee) (Congress

intended to provide dual or concurrent forums in the state and

federal courts to enable a plaintiff to choose her foruwm)); Note,

Section 1983 and Federaliem, 9 Harv. L. Rev. 11%. 1150 (1977)

(“the prevailing assumption [at the time that the 187! Act was

passed | had been that the state courts were the appropriate forum

for the enforcement of federal law.”); Hart & Wechsler, Hart &

Wecehaler's The Federal Courts and the Federal Syatem 844-845 (2d

a primary purpose for the establishment of a system of federal

courts, the principle established by the first Judiciary Act was that

private litigants must look to the state tribunal in the first instance

for vindication of federal claims.” ).

See, ¢.9., Maine Vv. Thiboutot, 448 U.S. 1, 22 0.10 (1980) ( Powell,

J. dissenting) (“Section 1983 actions may be brought against states,

municipalities and other subdivisions, officers, and employees . .. .”) ;

Monell, 436 U.S. at 682 (“Section 1 without question could be used

to obtain a damages judgment against state or municipal officials

who violated federal constitutional rights while acting under color

of law.”) ‘emphasis added) (citing Cong. Globe, 42d Cong. Ist Seas.

334 (1871) (Rep. Hoar); id. at 365 (Rep. Arthur); i@. at 567-968

(Rep. Sheldon); i¢. at 385 (Rep. Lewis); id. at App. 217 (Sen.

Thurman’); id. at 700 ("(E)veryone- proponents and opponents

alike knew { 183 would be applied to atate officers and nonetheless

stated that Section 1983 was constitutional.”).

* Ser, ¢.g., Alabama V. Pugh, 438 U.S. 781 (1978) (Court ordered

dismissal of state from action on Eleventh Amendment grounds but

allowed lower court's mandatory injunction to stand against state

officials); Vlendis v. Aline, 412 U.S. 441, 444-445, 454 (1978)

(Court affirmed an order in a Section 1983 action directing a public

official to reimburse excess tuition payments that had been improp-

erly collected from students) ; Griffin v. School Bd. 877 U.S. 218, 293

(1964) (Court authorized issuance of an order requiring public

officials to exercise their power to levy taxes to raise funda, if neces-

sary, to reopen the public schools).

* See, «9. Maine v. Thibowtot, 448 U.S. 1 (1980); Martines v.

California, 444 U.S. 277 (1980).

to enforce the tions of Fourteenth Amendment.

“| Tj here can be no doubt that § 1 of the Civil Rights Act

was intended to provide a remedy, to be broadly con-

strued, against all forms of official violation of federally

action against

“every person” who violates federal rights and provides

for the broadest possible relief through “an action at law,

;

|

passed the 1871 Act to address the acts of racial violence

rampant at the time:

|Wihen violence and lawlessness are universally

prevalent, the denial of equal protection of the laws

is too clear to admit of or con . Pull

force and effect is given to section lof

the Fourteenth Amendment] . . . . The authority

thus conferred is subject to no restrictions or limite-

tions.

Cong. Globe, 42d Cong.. Ist Sess. 322 (1871) (Rep.

Stoughton! (emphasis added).

In opening the debate on the 1871 Act, Representative

Shellabarger emphasized the broad scope of Section 1:

= This Court has recognized the broad reach of Section 1988 by

entertaining actions thereunder against state officials in their official

capacities and allowing rehef. See note 20 supra. In federal courts.

remedies in such cases have been limited to prospective injunctive

rehef because of Eleventh Amendment concerns. See Edelman V. Jor-

den, 415 U.S. 651 (1974); Be parte Youngs, 209 U.S. 128 (1908)

Again, however, these jurisdictional limitations are not inherent

in the Section 1983 cause of action and do not apply te this Section

1983 action brought in stete court. See Maine v. Thibowtfot, 448

U.S. 1. 9 a.7 (1980)

13

This Act is remedial, and in aid of the preserva-

tion of human liberty and human rights. Al! stat-

tes and constitutional provisions authorizing such

statutes are liberally and beneficently construed . . .

[and] the largest latitude consistent with such words

~ employed is uniformly given in construing such stat-

utes and constitutional provisions as are meant to

protect and defend and give remedies for their

wrongs to all the people. These provisions of the

Fourteenth Amendment are wholly devoted to secur-

ing the equality and safety of all the people, as is

this Section (Section 1|, and, indeed the entire bill.

Cong. Globe, 42d Cong., 1st Sess. App. 68 (1871) (quoted

with approval in Monell, 436 U.S. at 684) (emphasis

added). See also Cong. Globe, 42d Cong., 1st Sess. 317

(1871). Representative Dawes similarly commented on

the broad reach of the Bill:

No subject for legislation was ever brought before

the American Congress so broad and comprehensive,

embracing as it does all other considerations hitherto

affecting the life, liberty and pursuit of happiness of

every citizen of this Republic.

Cong. Globe, 42d Cong., Ist Sess. 475 (1871). Senator

Thurman, leader of the opposition in the Senate, was

most concerned that: “{T]jhere is no limitation whatso-

ever upon the terms that are employed, and they are as

comprehensive as can be used.” Cong. Globe, 42d Cong,

lst Sess. App. 217 (1871).

B. The historical context of the 1871 Act also demon-

strates that Congress intended to provide a direct

and comprehensive remedy against state violations

of the Act’s provisions.

The 1871 Act was one in a series of enactments, in-

cluding the 1866 Act, the Fourteenth Amendment, and

the Enforcement Act of 1870 (the “1870 Act”),” passed

by Congress to protect individual rights in the wake of

23 Act of May 31, 1870, ch. 114, 16 Stat. 140.

14

post-Civil War violence. Section 1983 was part of a con-

stitutional and statutory scheme intended to enforce

both state and individual respect for federal civil rights

and to prevent constitutional guarantees of liberty and

equality from being reduced to unenforceable promises

that were rights in name only.**

1. The 1866 Act, Section 2 of which served as the

model for Section 1983, was intended to provide

a broad remedy against states as well as indi-

viduals.

The 1866 Act* was passed primarily in response to

state-enacted Black Codes that left “[t]he Negro...

a slave in all but the constitutional sense.” ** It provided,

inter alia, for the criminal prosecution of persons, includ-

ing judges and other state officials, who violated the civil

rights of others, and authorized the President to take

actions “necessary to prevent the violation and enforce

the due execution of this act.” The Act was directed at

*4 In the aftermath of the Civil War, Congress passed three con-

stitutional amendments and a series of civil rights statutes designed

to outlaw slavery and prohibit any infringement of the civil rights

of former slaves. The Thirteenth Amendment, ratified in 1865,

abolished slavery; the Fourteenth Amendment, ratified in 1868, pro-

hibited states from depriving citizens of due process and equal pro-

tection under the laws; the Fifteenth Amendment, ratified in 1870,

guaranteed suffrage to the emancipated slaves. See U.S. Const.,

amends. XIII, XIV, XV.

25 The 1866 Act contained ten sections. Section 2, which served as

the model for Section 1 of the 1871 Act, provided:

That any person who, under color of any law, statute, ordinance,

regulation, or custom, shall subject, or cause to be subjected,

any inhabitant of any State or Territory to the deprivation of

any right secured or protected by this act, .. . shall be deemed

guilty of a misdemeanor, and, on conviction shall be punished

by fine not exceeding one thousand dollars, or iiaprisonment not

exceeding one year, or both, in the discretion of the Court.

Act of Apr. 9, 1866, ch. 31, § 2, 14 Stat. 27 (emphasis added).

* Gressman, The Unhappy History of Civil Rights Legislation,

50 Mich. L. Rev. 1323, 1325 (1952).

15

states as well as individuals.*’ That one of the objectives

of Section 2 of the 1866 Act was to reach the states is

clear from the legislative history,* and the enforcement

of the statute.

Although limited by the nature of the remedy to the

criminal prosecution of individuals, Section 2 of the 1866

Act was designed to dismantle the state enforcement

mechanism being used to prolong the enslavement of

blacks. The sanctions of Section 2 were applied repeat-

edly to state judges and other officials for actions taken

in their official capacities pursuant to clear state law

commands. That good faith immunity was not a defense

to these prosecutions demonstrates that the remedy was

a severe one directed at the state through its individual

officials.** Congress found criminal sanctions to be the

“7 Section 1 afforded “citizens of every race and color the right to

make and enforce contracts, convey real and personal property,” and

other transactions specifically directed at individuals. 14 Stat. 27

$1. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 427 (1968)

(“(Cljongress had before it [when debating the 1866 statute) an

imposing body of evidence pointing to the mistreatment of negroes

by private individuals and unofficial groups, mistreatment unrelated

to any hostile state legislation.”). The legislative history of the Act

forcefully demonstrates an intent to deter civil rights violations by

all persons, including states. See Cong. Globe, 42d Cong., 1st Sess.

App. 85-86 (1871) (Rep. Shellabarger), quoted with approval in

Quern V. Jordan, 440 U.S. 332, 362 (1979) (Brennan, J., concurring).

28“' The bill’s| whole force is expended in defeating an attempt,

under State laws, to deprive races and the members thereof as such

of the rights enumerated in this Act. This is the whole of it.”

Cong. Globe, 39th Cong., Ist Sess. 1293-1294 (1866) (Rep. Shella-

barger) (emphasis added).

“Tt cannot be claimed that the persons . . . could not be punished

under the provisions of this bill because they were acting as officers

and their conduct was the result of errors of judgment only. That

would be no valid defense-—no defense at all—-against the positive

terms of this law.” Cong. Globe, 39th Cong., Ist Sess. 1271 (1866)

(Rep. Kerr). See Zagrans supra note 12 at 543, 545. That Sec-

tion 2 authorized the incarceration of judges demonstrates the

severity of the remedy intended. See Cong. Globe, 39th Cong., Ist

16

most effective method at the time to thwart the enforce-

ment of discriminatory state laws and to deter future

discriminatory legislation. Senator Trumbull, sponsor of

the Bill, felt that a comprehensive remedy would quickly

put an end to the discrimination occurring throughout

the nation.”® Section 1983 was modeled after Section 2

of the 1866 Act to bring the full force of congressional

power to bear upon individuals and states.”

In 1870, two months after ratification of the Fifteenth

Amendment, Congress reenacted the 1866 Act in the 1870

Act.” The 1870 Act retained the severe criminal sanc-

tions of the 1866 Act and added provisions to prohibit

interference with the exercise of voting rights.“ Congress

Sess. 475, 1154, 1156, 1265 (1866) (Reps. Eldridge and Davis,

opponents of the Bill).

%# “When it comes to be understood in ail parts of the United

States that any person who shall deprive another of any right or

subject him to any punishment in consequence of his color or race

will expose himself to fine and imprisonment, I think such acts will

soon cease.” Cong. Globe, 39th Cong., Ist Sess. 475 (1866) (Sen.

Trumbull).

31 As Senator Edmunds, the manager cf the Bill in the Senate,

stated: “|T \he first section is one .. . defining the rights secured

by the Constitution of the United States when they are assailed by

any State law or under color of any State law, and it is merely

carrying out the principles of the civil rights Bill (of 1866], which

have since become a part of the Constitution.” Cong. Globe, 42d

Cong., Ist Sess. 568 (1871). See also Cong. Globe, 42d Cong., Ist

Sess. App. 68 (1871) (Rep. Shellabarger), quoted with approval in

Quern V. Jordan, 440 U.S. 332, 362 (1979) (Brennan, J., concurring).

* Section 18 of the 1870 Act expressly reenacted the 1866 Act.

See 16 Stat. 144, § 18. Section 2 of the 1866 Act was reenacted as

Section 17 of the 1870 Act. The 1870 Act adopted the language of

Section 2 of the 1866 Act almost in its entirety, though Congress

slightly modified the language to include a broader class of viola-

tions. Compare 16 Stat. 144, § 17 with 14 Stat. 27, § 2.

“ This Court, in United S!ites Vv. Price, 383 U.S. 787 (1966),

explained the purpose and scope of the 1870 Act:

The purpose and scope of the . . . 1870 enactment must be

viewed against the events and passions of the time .... The

17

intended both the 1866 and 1870 Acts to provide a

broad remedy that would reach the states as well as

individuals.

2. The Fourteenth Amendment, passed to provide

a constitutional basis for the 1866 Act, was clearly

directed at the states.

The Fourteenth Amendment was ratified in 1868. The

language of the amendment and its legislative history

demonstrate that the drafters of the Fourteenth Amend-

ment intended to reach the states.” The overriding pur-

Ku Klux Klan was organized by southern whites in 1866 and

a similar organization appeared with the romantic title of the

Knights of the White Camellia. In 1868 a wave of murders

and assaults was launched including assassinations designed

to keep Negroes from the polls. The States themselves were

helpless, despite the resort by some of them to extreme meas-

ures such as making it legal to hunt down and shoot any dis-

guised man. 383 U.S. at 803-804.

*“(I)t is better to invade the judicial power of the State than

- permit it to invade, strike down, and destroy the civil rights of the

citizens . . . .” Cong. Globe, 39th Cong., Ist Sess. 1837 (1866)

(Rep. Lawrence in support of the 1866 Act) (emphasis added).

% Representative Bingham, author of Section 1 of the Four-

teenth Amendment, told his colleagues during the 1871 debate that

he had used the “no state shall” formulation for the precise pur-

pose of overruling the Supreme Court's decision in Barron Vv. Mayor

and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). He

explained, “[T)he city had taken private property for public use

without compensation as alleged, and there was no redress for

the wrong in the Supreme Court of the United States.” Cong.

Globe, 39th Cong., Ist Sess. App. 84 (1866). See Ex parte Vir-

ginia, 100 U.S. 339, 346-347 (1880) (The prohibitions of the

Fourteenth Amendment “are directed to the States .... They

have reference to actions of the political body denominated a

State, by whatever instruments or in whatever modes that action

may be taken.”); The Civil Rights Cases, 109 U.S. 3, 9 (1883)

(The “abrogation and denial of rights, for which the States alone

were or could be responsible was the great seminal and funda-

mental wrong which was intended to be remedied [by the Four-

teenth Amendment |").

18

pose of the amendment was to enable Congress effectively

to reach the states to guarantee civil rights for all citi-

zens. As stated by Representative Wilson, Chairman of

the Judiciary Committee, “|T)his bill invades the States

to enforce equality of rights in respect to those things

which properly and rightfully depend on State regula-

tions and laws.” Cong. Globe, 39th Cong., Ist Sess. 1294-

1295 (1866) (emphasis added).

The Fourteenth Amendment also was intended to pro-

vide a constitutional basis for the civil rights statutes.”

Congress intended to place responsibility for respecting

civil rights directly on the states under the Constitution,

despite the fact that the 1866 Act directed at states and

individuals already existed. As stated by Representative

John Broomall: “If we are already safe with the civil

rights bill, it will do no harm to become the more effec-

tually so, and to prevent a mere majority from repealing

the law and thus thwarting the will of the loyal people.”

Cong. Globe, 39th Cong., Ist Sess. 2498 (1866).

™ During the debate on the 1866 Act, Representative John Bing-

ham opposed the Rill because he felt that Congress had no power

to pass such a provision without a constitutional amendment. In

proposing a draft of the Fourteenth Amendment, he clearly stated

an intent te reach the same misconduct that Section 2 of the 1866

Act prohibited:

The question is, simply, whether vou will give by this amend-

ment to the people of the United States the power, by legisla-

tive enactmont, (o pweis’ officials of States for violation of

the oaths enjoined upon them by their Constitution?

Cong. Globe, 39th Cong. Ist Sess, 1098 (1966) ‘emphasis added).

19

Il. INCLUDING STATES WITHIN THE DEFINITION

OF “PERSON” UNDER SECTION 1983 FULFILLS

THE PURPOSE OF THE 2D CONGRESS TO

REMEDY DEPRIVATIONS OF FEDERAL RIGHTS

UNDER COLOR OF STATE LAW THROUGH ADE-

QUATE COMPENSATION AND EFFECTIVE DE-

TERRENCE.

The question of whether the state is a “person” under

Section 1983 must be answered so as to effectuate the

general purpose of the 42d Congress “to provide com-

:

;

=

2

.

i

Z

;

(1980). Unless this Court holds that states are “per-

sons” under Section 1983, the relief available wil] be

limited in a manner that undermines Section 1983's dual

purposes of compensation and deterrence.“

A. States must be “persons” under Section 1983 to en-

sure that compensation for victims of federal rights

violations under color of state law is available, ade-

quate, and fair.

Under the Michigan Supreme Court's interpretation

of the word “person” in Section 1983, to obtain any

“Tt is ancient wisdom that statutes should be interpreted so

that the manifested purpose or object can be accomplished.” 2A

C. Sands, Sutherland Statutory Construction, § 58.06, at T23 (4th

ed. 1987). See United States v. Zorere, 334 U.S. 602, 610 (1948).

* It is clear from the legislative histery that Congress intended

te provide broad relief to victims of constitutional deprivations

under color of state law. See supre at LA. This does not mean,

however, that relief under Section 1983 should be limited to 1871

notions of recovery. Rather, Section 1983 should be interpreted

in order to effectuate the broad remedial purpose of the statute.

“The section's purpose was to provide redress for the deprivation

of civil rights. ... The methods may have chanwed: the means

may have become more subtle; but the wrong toe be remedied

still exists.” Pierson v. Ray, 386 U.S. 547, 568 (1987) (| Dowerlas,

J., dissenting).

20

recovery for deprivations of federal rights under color of

state law a plaintiff must sue an individual defendant

in his personal capacity for monetary damages or seek

injunctive relief against a state official under the fiction

of Ex parte Young, 209 U.S. 123 (1908). Neither of

these alternatives ensures that the intent of the 42d

Congress to provide full compensation is fulfilled.

In the instant case, as in many other Section 1983

cases,” moneiary damages are necessary to compensate

fully a plaintiff.*° An injunction would have been wholly

ineffective in vindicating petitioner’s constitutional rights.

Michigan’s unconstitutional denial of petitioner’s promo-

tion occurred in 1973. Petitioner did not learn of the

violation of his constitutional rights until 1977, after the

law authorizing the “Red Squad” was declared uncon-

stitutional. See Pet. Br., Statement of the Case. By that

time there was no need to enjoin the state from future

unconstitutional activity. The harm had been done, and

petitioner was entitled to be compensated for his lost

wages, career loss, and emotional distress.*’

8% See Wolcher, Sovereign Immunity and the Supremacy Clause:

Damages Against States in Their Own Courts for Constitutional

Violations, 69 Calif. L. Rev. 189, 219-227 nn.105-107 (1981) (and

cases cited therein).

4° As this Court has recognized: “A damages remedy against

the offending party is a vital component of any scheme for

vindicating cherished constitutional guarantees, and the importance

of assuring its efficacy is only accentuated when the wrongdoer is

the institution that has been established to protect the very rights

it has transgressed.” Owen, 445 U.S. at 651.

41 The trial court agreed and awarded petitioner $584.64 for

lost wages, $40,544 for career loss, $56,052 for emotional distress,

and $56,052 in exemplary damages. See Pet. Br., Statement of the

Case. The Michigan Supreme Court’s decision negated these

damages.

21

1. Including states as “persons” under Section 1983

ensures that compensation is available.

Because state officials sued in their personal capacity

often may be protected from liability by common law

immunities,” individual capacity suits will leave many

civil rights plaintiffs without any compensation for viola-

tions of their federally protected rights resulting from

state laws, policies or customs. In the instant case, peti-

tioner’s constitutional rights were violated by individuals

exercising power pursuant to and required by state law.”

A court could have found that, prior to 1976 when the

law was declared facially unconstitutional, a reasonable

person would not have known that the law violated

“clearly established” constitutional rights. Thus, if peti-

tioner had sued an individual official in his or her per-

sonal capacity, recovery may have been barred by quali-

fied immunity.

By holding that states are “persons” within the mean-

ing of Section 1983, plaintiffs with meritorious claims

will be able to recover damages directly from the state

when the state’s laws, policies or customs violate their

federally protected rights. The policies supporting the

qualified immunity protection given to individual officials

42 See, e.g., Harlow vy. Fitzgerald, 457 U.S. 800, 818 (1982)

(executive officials protected from liability for discretionary con-

duct that does not violate “clearly established statutory or con-

stitutional rights of which a reasonable person would have

known”); Pierson v. Ray, 386 U.S. 547, 557 (1967) (police officers

not liable for actions taken in “good faith and [with! probable

cause”).

43 The Michigan state law under which the files of petitioner's

brother were kept stated: “The state police shall collect informa-

tion and evidence relating in any manner to activities prohibited

by this act.” Pet. Br., Statement of the Case (emphasis added).

The law further provided: “The commissioner may furnish in-

formation contained [in confidential files of information on ac-

tivities that are subversive of government] to the responsible

heads of any agency having charge of employment by the state.”

Id.

22

have no application in an action against a state that it-

self has initiated an unconstitutional policy or practice.

In addition to the qualified immunity barrier, a civil

rights plaintiff may not be able to secure adequate legal

representation to maintain an action against an individ-

ual official in the first instance. Attorneys’ fees cannot

be obtained from the state in a damages action against a

state official in his individual capacity, Kentucky V.

Graham, 473 U.S. 159, 167 (1985), and attorneys under-

standably will be reluctant to initiate litigation against

individual officials who may not be able to pay them.

Congress, in passing the Civil Rights Attorney’s Fees

Awards Act of 1976 (“Section 1988”), 42 U.S.C. § 1988

(1976), recognized that many civil rights violations

would go without a remedy if attorneys’ fees were not

available for Section 1983 suits. As Congress explained

when it enacted Section 1988:

If private citizens are to be able to assert their civil

rights, and if those who violate the Nation’s funda-

mental laws are not to proceed with impunity, the

citizens must have the opportunity to recover what

it costs them to vindicate these rights in court.

S. Rep. No. 1011, 94th Cong., 2d Sess., reprinted in 1976

U.S. Code Cong. & Admin. News (90 Stat.) 5908, 5910.

Thus, the low-income victim of constitutional deprivations

under color of state law may have no recourse. This re-

sult would clearly be contrary to Congress’ intent when

it enacted both Section 1983 and Section 1988.

There are other barriers that may prevent recovery

against a state official in his personal capacity. For ex-

ample, the plaintiff may not be able to identify an in-

dividual who is amenable to suit for harm caused by a

state policy or custom. Often, the problem will be sys-

temic and therefore not attributable to any one individ-

ual. Owen v. City of Independence, 445 U.S. 622, 652

(1980) (“ ‘systemic’ injuries . . . result not so much from

the conduct of any single individual, but from the inter-

ee

23

active behavior of several government officials, each of

whom may be acting in good faith.”).“* In some in-

stances, a plaintiff must also establish “a ‘pervasive pat-

tern of intimidation’ flowing from a deliberate plan by

the named defendants... .” Rizzo v. Goode, 423 US.

362, 375 (1976) (emphasis in original).

Moreover, many civil rights plaintiffs have limited re-

sources and cannot afford the expensive investigations

that may be necessary to find an individual defendant.

Extensive discovery may be required to identify the in-

dividuals who carried out an unconstitutional policy. If

the civil rights plaintiff is successful in identifying the

individuals responsible, he still may not be able to locate

those former state officials who have moved out of the

jurisdiction, thus making it difficult to obtain personal

jurisdiction over them.

2. Including states as “persons” under Section 1983

ensures that the compensation is adequate.

Even assuming that the aforementioned barriers do not

preclude the civil rights plaintiff from proceeding to

court with a meritorious claim, he faces additional bar-

riers to full recovery in court if the state is not subject

to suit under Section 1983. One such barrier occurs at

trial when the plaintiff must ask a jury to award mone-

tary damages against a state official. Juries often will

be unwilling to assess full compensatory damages against

“hard-working, underpaid” low level officials who will

44 See, e.g., Howell v. Cataldi, 464 F.2d 272, 282-284 (3d Cir.

1972) (directed verdict in favor of defendant police officers where

plaintiff could not specifically identify the police officers who had

beaten him); see also Wolcher, Sovereign Immunity and the Su-

premacy Clause: Damages Against States in Their Own Courts

for Constitutional Violations, 69 Calif. L. Rev. 189, 224 (1981)

(“plaintiff may have trouble even identifying the wrongdoer, though

it is clear that the wrongdoer must be an officer of the state.”).

24

have to pay the judgment out of their own pockets.”

Even if the state provides indemnification, the juries in

many states may not be told that the state will pay for

any judgment against the official. See, e.g., Idaho Code,

¢ §-903(f). Thus, the victim may not receive compensa-

tory damages adequate to remedy his injuries.

Assuming that the jury does award an adequate rem-

edy in a personal ca; s7ity action, the state official de-

fendant nevertheless may not have sufficient resources to

satisfy the judgment. This is often true when the de-

fendant is a government employee with limited resources

and the deprivation of rights is attributable to an uncon-

stitutional policy or custom. As in the instant case, a

systemic policy or custom will often harm many people

before it is declared unconstitutional. State employees,

subject to suit in their individual capacity for enforcing

the unconstitutional policy, are likely to have limited re-

sources. One successful claim could bankrupt the em-

ployee and preclude recovery for subsequent plaintiffs.

Even state indemnification statutes providing indemn-

ification of state officials for claims brought against them

in their individual capacities will not afford relief in

many cases."* Many state indemnification statutes do not

require indemnification but merely “authorize” or give

discretion to the governor or other official to decide

whether to indemnify. See, e.g., Ind. Code Ann. § 34-4-

‘ See Newman, Suing the Lawbreakers: Proposals to Strengthen

the Section 1983 Danage Remedy for Law Enforcers’ Misconduct,

87 Yale L. J. 447, 456 (1978); Wolcher, Sovereign Immunity and

the Supremacy Clause: Damages Against States in Their Own

Courts for Constitutional Violations, 69 Calif. L. Rev. 189, 224

(1981).

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

(1978), Justice Powell “assumed that most municipalities already

indemnify officials sued for conduct within the scope of their au-

thority.” 436 U.S. at 713 n.9. However, the availability of in-

demnification of state officials is not certain. See P. Schuck, Suing

Government: Citizen Remedies for Official Wrongs, 227 n.1 (1983).

25

16.7-1 (1976); Me. Rev. Stat. Ann. tit. 14, § 8112

(1980); S.C. Code Ann. § 1-11-140 (Law. Co-op. 1986).

Some statutes only cover state tort claims. See, e.g., lowa

Code Ann. § 25A.21 (West Supp. 1988). Often, the

amount of indemnity available is limited and will thus

not provide full compensation. See, e.g., R.1. Gen. Laws

$ 9-31-12 (1985) ($50,000); S.D. Codified Laws Ann.

§§ 3-19-1, 3-19-2 (1985) ($25,000); Vt. Stat. Ann. tit. 3,

§ 1103 (1985) ($100,000).

In addition, states can restrict or even abolish their

indemnification provisions at any time, leaving the pros-

pect of recovery uncertain for many plaintiffs under Sec-

tion 1983. Congress must have intended that Section

1983 provide a uniform and complete system of compen-

sation for victims of state misconduct. Leaving the

amount of a Section 1983 plaintiff’s recovery to the whim

of the state will undermine this congressional intent. If

the state is not a “person,” the plaintiff thus may be

without a complete remedy. Although a plaintiff would be

subject to similar barriers when the deprivation of his

constitutional rights is not attributable to a state policy

or custom, the recovery should not be so limited when it

is the state that is responsible. See Monell v. Depart-

ment of Social Services, 436 U.S. 658, 694 (1978) ; Owen,

445 U.S. at 651.

3. Including states as “persons” under Section 1983

ensures that the system of compensation is fair.

Congress surely intended that the broad remedy under

Section 1983 for compensating citizens deprived of their

constitutional rights be fair. When a state passes a law

or establishes a policy which violates rights guaranteed

by the Constitution, justice demands that it be the state

that bears the responsibility for compensating the person

deprived of those rights. See Owen, 445 U.S. at 654

(“Elemental notions of fairness dictate that one who

causes a loss should bear the loss.”). If the state cannot

26

be sued for these wrongs, the person whose rights were

violated may seek redress only from the state official who

carried out the state’s commands.*’ But when it is the

state’s policy or custom and not the state official’s inde-

pendent action that violates the individual’s rights, it is

unfair to place the burden of compensation on the state

official. See Scheuer v. Rhodes, 416 U.S. 232, 240 (1974).

There is no unfairness, however, in requiring the state

to compensate citizens for violations of their federal

rights. A government entity has no “ ‘discretion’ to vio-

late. . . the Federal Constitution; its dictates are abso-

lute and imperative.” Owen, 445 U.S. at 649 (referring

to municipalities). One of these dictates is the Four-

teenth Amendment which imposes “absolute” and “im-

perative” obligations upon the states.** “|W hen execu-

tion of a government’s policy or custom . . . inflicts the

injury the government as an entity is responsible under

§ 1983.” Id.

Holding that the state is not a “person” under Section

1983 would place the costs of the state’s unconstitutional

policies on the shoulders of the victims or the less culp-

able state officials instead of on the state where it prop-

erly belongs. Congress could not have intended such an

unjust result when it enacted Section 1983. Justice

Powell implicitly recognized this unfairness in Monell

when he wrote: “It is most unlikely that Congress in-

tended public officials acting under the command or the

specific authorization of the government employer to be

exclusively liable for resulting constitutional injury.”

Monell, 436 U.S. at 707 (Powell, J., concurring).

A holding that states, like municipalities, are “per-

sons” under Section 1983 also is required to ensure fair

47 See discucs-' = of limitations «f this remedy at II.A.1 and

11.A.2. supra.

See, e.q., U.S. Const. amend. XIV, § 1 (“No State shall... .”)

(emphasis added).

27

and evenhanded treatment of persons injured by the mis-

conduct of government actions at the state and local

levels. The 42d Congress would not have intended that

petitioner’s recovery depend on whether it was a state

law or a city ordinance that denied him his rights.

Surely Congress would not have intended that petitioner

be allowed recovery only if he had been “fortunate

enough” to have been denied his promotion by the De-

troit city police department, on the basis of a similar

“Red Squad” municipal statute, instead of by the Michi-

gan Department of State Police. Congress would have

intended that a remedy be available in either case.

B. States must be “persons” under Section 1983 to en-

sure efficient deterrence of federal rights violations.

This Court consistently has recognized that Congress

intended Section 1983 “not only to provide compensation

to the victims of past abuses, but to serve as a deterrent

against future constitutional deprivations, as well.”

Owen, 445 U.S. at 651; see also Robertson v. Wegmann,

436 U.S. 584, 590-591 (1978); Carey v. Piphus, 435 U.S.

247, 256-257 (1978). Placing the deterrent pressure of

monetary damages directly on the states is the most log-

ical and efficient means of discouraging state violations

of federal rights and encouraging state vigilance in root-

ing out federal rights violations among its agencies and

officials.

It has long been recognized that the threat of monetary

damages is an effective deterrent. Restatement of Torts

§ 944(2) (1939) (“the punishment inherent in the [dam-

ages] remedy will have a . . . deterrent effect upon the

defendant.”). When a plaintiff must seek monetary re-

lief against an individual for the state’s unconstitutional

laws, policies, and customs, and any one of the many

barriers discussed supra limit or bar recovery, the state

is likewise not deterred. This Court has recognized that

“the threat that damages might be levied against the

28

city may encourage those in a policy making position to

institute internal rules and programs designed to mini-

mize the likelihood of unintentional infringements on con-

stitutional rights.” Owen, 445 U.S. at 652. This rationale

applies with equal force to the states.

Although some states provide indemnification for state

officials sued in their personal capacity, a damage award

against the state official rarely will provide the deterrence

that Congress intended. Most state statutes do not allow

indemnification if the official’s conduct or lack thereof

was not in good faith. See, e.g., Del. Code Ann. tit. 10,

s 4002 (1984) (no indemnification if not in good faith,

not wanton or grossly negligent) ; Ill. Ann. Stat. ch. 127,

§ 1302(e) (Smith-Hurd 1987) (no indemnification if con-

duct was “intentional, wilful, or wanton”); Ohio Rev.

Code Ann. § 9.87 (Page 1985) (no indemnification if

official acted with malicious purpose, in bad faith, or in a

wanton or reckless manner). Under the qualified im-

munity doctrine, if the state official does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known, Harlow v. Fitz-

gerald, 457 U.S. 800, 818 (1982), or acts in good faith

with a reasonable basis, Pierson v. Ray, 386 U.S. 547,

557 (1967), he will be immune. In most instances where

the indemnification statute would cover the official’s con-

duct, the qualified immunity doctrine will bar liability

anyway and the state will not have to pay damages. Ad-

ditionally, the state will not even be required to pay for

the defense of the state official because the issue of im-

munity must be resolved before discovery will be allowed.

Harlow, 457 U.S. at 818. Thus, states rarely will be de-

terred by personal capacity suits against their officials.

If the civil rights plaintiff chooses the other option

available under the lower court’s reading of Section

1983, an injunction against a state official in federal

court under Ex parte Young, 209 U.S. 123 (1908), the

deterrent effect on the state will be prospective only.

29

Without the potential threat of a damage award against

the state, there will be little incentive for the state to

identify and avoid unconstitutional governmental laws,

policies, and customs before individuals are deprived of

their constitutional rights.

With less care taken on the part of the state, many

more violations will occur and more plaintiffs will be

forced to seek redress from the courts. In addition, in-

dividuals forced to seek injunctions must go to court to

obtain them and ensure that they are enforced. The

threat of a monetary damage award against the state may

prevent the violation before it occurs and reduce the

need to run to the courthouse for relief. Congress surely

intended that Section 1983 deter constitutional violations

efficiently. Making states accountable “persons” under

Section 1983 is the most efficient method possible.

CONCLUSION

This Court should hold that states are “persons” within

the meaning of Section 1983 for “[t]o take away all

remedy for the enforcement of a right is to take away

the right itself.” Poindexter v. Greenhow, 114 U.S. 270,

303 (1885). Accordingly, the decision below should be

reversed.

30

Of Counsel:

CONRAD K. HARPER

Co-Chair

STUART J. LAND

Co-Chair

NORMAN REDLICH

Trustee

WILLIAM L. ROBINSON

JUDITH A. WINSTON

LAWYERS’ COMMITTEE FOR

CrviL RIGHTS UNDER LAW

1400 Eye Street, N.W.

Washington, D.C. 20005

ANTONIA HERNANDEZ

E. RICHARD LARSON

MEXICAN AMERICAN

LEGAL DEFENSE AND

EDUCATIONAL FUND

634 South Spring Street

Los Angeles, CA 90014

Respectfully submitted,

WILLIAM A. BRADFORD, JR.*

STEVEN J. ROUTH

HELENE O. COBB

HOGAN & HARTSON

Columbia Square

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

* Counsel of Record for

Amici Curiae

la

APPENDIX

DESCRIPTION OF AMICI ORGANIZATIONS

The Lawyers’ Committee for Civil Rights Under Law

is a non-profit corporation organized in 1963 at the re-

quest of President Kennedy. The Lawyers’ Committee

has dedicated its resources to securing private counsel

for victims of race discrimination and to securing for all

persons equal justice under the law. To this end, the

Lawyers’ Committee has participated in numerous cases

in this Court urging that Section 1983 be construed to

provide redress to civil rights litigants.

The Mexican American Legal Defense and Educational

Fund (MALDEF) is a national civil rights organiza-

tion established in 1967. Its principal object is to se-

cure, through litigation and education, the civil rights

of Hispanics living in the United States. MALDEF’s

position, as stated herein, has developed through ex-

tensive litigation under the Fourteenth Amendment and

42 U.S.C. § 1983.

The National Association for the Advancement of Col-

ored People (NAACP) is an organization dedicated to

the furtherance of racial equality as well as social and

economic justice in this country. To promote those ends,

the NAACP and its members often initiate litigation in

both federal and state courts to enforce federal constitu-

tional and statutory rights. The NAACP’s ability to

name states as defendants in state court actions and to

seek appropriate relief from states where their policies

have infringed on federal rights is important both to

permitting effective litigation and to achieving our

broader purpose of deterring unlawful state conduct.

The Michigan Trial Lawyers Association comprises

lawyers representing injured persons. The Association

is dedicated to advancing the science of jurisprudence

and promoting the administration of justice for the pub-

2a

lie good. Association members currently represent per-

sons injured as a result of state action on the part of

police and other agents of the State of Michigan. It is

because of this interest that the Michigan Trial Lawyers

Association, through its Amicus Curiae Committee, sup-

ports the position of the Petitioner herein.

Michigan Legal Services is interested in the outcome

of this case because it represents many impoverished in-

dividuals who require redress from state governmental

agencies and who may be denied access to the courts by

the holding of the court below. Michigan Legal Services

is currently and has been counsel to persons whose homes

have been subject to foreclosure when the state welfare

agency involuntarily vendored their mortgage payment

and also to persons wrongfully denied payment for med-

ical procedures by the same state agency. These clients’

efforts to obtain fair compensation for their injuries and

even prospective relief will be impeded unless the deci-

sion below is reversed.

The Center for Constitutional Rights was born of the

civil rights movement and the struggle of black people

in the United States for true equality. Center for Con-

stitutional Rights attorneys have been active in cases

involving voting rights, jury composition, community

control of schools, fair housing, and employment discrim-

ination. Through litigation and public education we have

worked to protect and make meaningful the constitu-

tional and statutory rights of women, blacks, Puerto

Ricans, native Americans, and Chicanos.