Brief for the Respondent in Opposition — Smith v. California

We

Subject Index

Page

ERE AL AD AR PONE ON LEER NAN ps a 1

tela ate inhaeie ladiad hin antasimidaked oeain 2

Nee i a a cide wibliewarinia main 2

NN he eect keen dame ddeenamebade sd wii 2

a eae cee sk seduuaenmneweveweda 3

aT ee ae ae Ne 3

ie oe teri eeannaade nd Kamencisaaes 3

EC ESTAR EE Leen eT a +

Prior habeas corpus litigation ..................-es0000- 6

ee oo onc daeeceanecwananeaseaeace 7

Dt cs useedunsbheawtsadehesdedectennsanenesaee 9

I

The Civil Rights Act was not intended to render states

liable in monetary damages for the conduct of their

Dt (tC ehHitencdeabansebuceeebbsabebbed kone 9

II

California has not and can not consent to suits in federal

courts under the Civil Rights Act .................. 12

Ill

A state cannot be sued for monetary damages under

Title 28 United States Code, Section 1331 .......... 13

tt tht eee nee wh ebeneeadassenabedinds és en ee 14

BRR ee get te ons I NCEP RA ERT HORA IRAE PT e re

Table of Authorities Cited

Cases Pages

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.

OR CITED nd n ccc swencnndancensnncenscvssdccacescees 13, 14

City of Kenosha v. Bruno, 412 U.S. 507 (1973) ........ 11, 12,13

Clark v. Washington, 366 F.2d 678 (9th Cir. 1966) ...... 10, 12

Collins v. Moore, 441 F.2d 550 (5th Cir. 1971) ............ 10

Conway v. Adult Authority, 396 U.S. 107 (1969) ........ 4

Deane Hill Country Club, Ine. v. City of Knoxville, 379

ee ee Se BED ode kccueceeseuanmeeenssvenede 10, 11

District of Columbia v. Carter, 409 U.S. 418 (1973) ...... 11

Fear v. Pennsylvania, 413 F.2d 88 (3rd Cir.), cert. denied

ee Pe EE Gackt tans nodacnandeueeenaeanaaes 10,11

Gamboez v. Sub-Committee on Claims, 423 F.2d 674 (3d

SG SN ual ia exe Guan deebahen whebsadan iecheekuakn 10, 12

Hans v. Louisiana, 134 U.S. 1 (1890) ................006. 12

Loux v. Rhay, 375 F.2d 55 (9th Cir. 1967) .............. 10

Meyer v. New Jersey, 460 F.2d 1252 (3d Cir. 1972) ...... 10

Mills v. Brown, 42 U.S. (16 Pet.) 337 (1842) ............ 13

Monroe v. Pape, 365 U.S. 167 (1961) ...........cccceeee 10, 11

Moor v. County of Alameda, 411 U.S. 693 (1973) ........ i

Neal v. Georgia, 469 F.2d 446 (5th Cir. 1972) ............ 10

Parden v. Terminal R. Co., 377 U.S. 184 (1964) .......... 13, 14

es ee, Wk Ge ia va ns beennc es van sdonecuss 7

a Tn, De MI cise ce wip eccacaabenswews 7

Stewart v. Minnick, 409 F.2d 826 (9th Cir. 1969) ........ 10

United States ex rel. Foreman v. New Jersey, 449 F.2d

See Ce GS SEE ccccucuabena teucanudisunsencuniaas 10,11

United States ex rel. Gittlemacker v. County of Phila-

delphia, 413 F.2d 84 (3d Cir.), cert. denied 396 U.S.

PP DRMIEES Caviccdastanacnmks oo acuumecaeneentabeaan 10

United States ex rel. Lee v. Illinois, 343 F.2d 120 (7th Cir.

SE Siu Wicd dase cdadekanae denies et euseeneeeioen Thon 10,11

Whitner v. Davis, 410 F.2d 24 (9th Cir. 1966) ........ 10, 11, 12

Williford v. California, 352 F.2d 474 (9th Cir. 1965) ...... 10,11

saiiiiaaliad ODER SITS ROT REI

TABLE oF AUTHORITIES CITED

Codes

Government Code:

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EEL s5cca0nnccceeWensdatane keer ebennaneant

EE oo tin kccucducdansivewsnacaeeeaennes

PE SE SE i nken bens scdnnensns deeentesansua

Constitutions

United States Constitution, Eleventh Amendment .........

Rules

Local Rules of Practice for the United States District Court

for the Northern District of California, Rule 114(d) ....

Statutes

ey. es CE ns en neck ne nduacddanvesewasc

28 U.S.C.:

SD ED incideacsadsendsdusu hu tissdwenaeenes

RE SR ear y one ge emee yy Py Semen NT ae GING RON a

|

ERIE INR ae ee

SRS

In the Supreme Court

OF THE

Rnited States

OcToBER TERM, 1973

No. 73-672

Wu. J. Situ, Petitioner,

vs.

StTaTE OF CALIFORNIA, et al., Respondents,

RESPONSE IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

On May 3, 1971, the United States District Court

for the Northern District of California issued an order

dismissing petitioner’s complaint brought under vari-

ous provisions of the Civil Rights Act (No. C-69-90

AJZ). The dismissal is reflected in a minute order of

that date.’

1The “Order Dismissing Action” which appears as Appendix I

to the petition has been erroneously proffered as the order of the

District Court. Our examination of the District Court records dis-

closes that no such order was ever signed or filed. The purported

order is actually the proposed order which was submitted to the

District Court in conjunction with the Motion to Dismiss pursuant

to Rule 114(d) of the Local Rules of Practice for the United States

District Court for the Northern District of California. Only a

minute entry for May 3, 1971, noting that the motion to dismiss

was granted, reflects the final action of the District Court.

— 2 PTE Se Ne vey

2

The opinion of the Court of Appeals for the Ninth

Circuit, which was filed on July 23, 1973, has not yet

been published. A copy of that opinion appears as

Appendix ITI to the petition herein.

JURISDICTION

The jurisdiction of this Court is sought under title

28, United States Code, section 1254(1).

QUESTIONS PRESENTED

1. Can a State be sued for monetary damages

under provisions of the Civil Rights Act of 1871?

2. Has the State of California consented to be sued

in federal courts under provisions of the Civil Rights

Act of 1871?

3. Can a State be sued for monetary damages

und *r title 28, United States Code, section 1331(a)

for an alleged violation of federal constitutional

rights?

STATUTES INVOLVED

The following federal and state statutes are in-

volved: title 28, United States Code, section 1331(a) ;

title 42, United States Code, section 1983; and Cali-

fornia Government Code sections 815.2(b), 820.2, and

845.8(a).

ee

ee — . ae

Pars pee sai PES GOS SH . MPVS AOU TRIER Starr,

3

STATEMENT OF THE CASE

On October 14, 1969, petitioner filed a complaint

in the United States District Court for the Northern

District of California under various federal statutes

including title 28, United States Code, section 1331,

and title 42, United States Code, section 1983 (Civil

Rights Act of 1871). Defendants included the State,

various State agencies, and a number of “Does.’””

Those defendants which had been served filed a mo-

tion to dismiss on April 27, 1970.5 On March 17, 1971,

petitioner filed a motion for entry of default against

the State and Abelico Chavez. On May 3, 1971, a hear-

ing was held upon petitioner’s motion for entry of

default and defendants’ motion to dismiss; the former

being denied and the latter granted. An appeal was

taken and on July 23, 1973, the Court of Appeals for

the Ninth Circuit affirmed the decision of the District

Court.

STATEMENT OF FACTS

Introduction

According to the complaint filed in the District

Court, petitioner was serving several sentences in a

State prison when, on April 25, 1961, the California

Adult Authority fixed his sentence at 7 and 14 years,

2Defendants listed included the State of California, the Califor-

nia Adult Authority, the California Department of Corrections,

the County of Doe, and Does I-XX.

8The two State agencies were served on March 16, 1970, and the

State itself was served the following day. According to petitioner,

one Abelico Chavez was served as “Doe Three” on June 17, 1970.

The records of the District Court do not contain any return of

service on Mr. Chavez.

SO cade i a i a eR a a a FP EEO OIIS

4

with 4 and 1% years to be served on parole. Under

this determination, petitioner was scheduled to be

released on parole on February 20, 1962. But on Feb-

ruary 26, 1962, the Adult Authority rescinded its prior

action and petitioner continued to remain confined

in state prison until November 19, 1968, In October

of 1968, petitioner filed a writ of habeas corpus in the

Kern County Superior Court for the purpose of chal-

lenging his continued confinement, and on February

14, 1969, that court discharged petitioner from further

confinement, finding that the Adult Authority’s rescis-

sion of parole had been “arbitrary, capricious, and

without just cause.”

In the petition for writ of certiorari, petitioner has

been even less candid with this Court in framing his

“statement of case.” Thus he has charged that State

officials “failed to release petitioner . . . from confine-

ment, in violation of California Penal Code §§ 2940,

3063,” (p. 7) Petitioner has not explained, to the Dis-

trict Court or to this Court, the entire framework in

which this case arises. Mindful of this Court’s ad-

monition in Conway v. Adult Authority, 396 U.S. 107,

110 (1969), and realizing therefrom that this Court

does not desire significant constitutional questions to

be decided in a vacuum, respondents offer the follow-

ing factual background.

Underlying Facts

On February 18, 1959, petitioner was sentenced to

State prison after having been found guilty of con-

spiring to commit burglary and second-degree bur-

5

glary, with a prior conviction of first-degree burglary.‘

On March 17, 1959, petitioner was also found guilty

of second-degree burglary in a separate proceeding;

the sentence imposed to be served concurrently with

the February conviction.’ The maximum term of im-

prisonment under these convictions was 1-15 years.

Calif, Pen. Code § 461.

On April 25, 1961, the California Adult Authority

fixed each of petitioner’s terms of imprisonment at 7

and 14 years, with the last 4 and 1% to be spent on

parole. On December 6, 1961, the Associate Superin-

tendent of the institution at which petitioner was con-

fined informed the Adult Authority that petitioner

feared for his life if he were paroled within Califor-

nia® and recommended consideration of an out-of-

state parole, though noting that petitioner had no

contacts outside the State." On December 15, 1961,

4San Joaquin County Super. Ct. No. 13919.

5Los Angeles County Super. Ct. No. 201634.

®According to a letter which petitioner wrote to the Director of

the Christian Service Center in Youngstown, Ohio, on January 29,

1963, the basis for this fear was that:

“T was one of two informers for narcotics agents in Cali-

fornia. As a result of my testimony, several key underworld

figures were sentenced to long prison terms. The other in-

former was killed and I am certain I also will be killed as

soon as I leave prison if I remain in California.”

In this letter, dated December 6, 1961, Associate Superintendent

Lloyd observed :

“T again talked to Smith . . . regarding his apprehension

of living in California. As his parole date gets nearcr, his

fear of going out in California seems to become more evident.

He feels very strongly that he will be killed within a short

time if he remains in this State outside of prison. He desires

to get into another State, preferably some distance from Cali-

fornia. . .. He is California born and has no connections out-

side of the State of California.”

|

4 a oh oat Sthatartan Catt a meet tee ete patna aig epee —_

Q EE LaF Lae

Dae Re cen ae 5 Kd acid PTA Ls FD EMR ee Le

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upon receipt of the report concerning petitioner’s

fears, the Adult Authority placed petitioner’s case on

its March 1962 calendar for review. On February 1,

1962, a Classification and Parole Representative in-

formed the Adult Authority that “It is the feeling of

Institution Staff, who are aware of Smith’s situa-

tion, that his chances to complete a successful parole

in California are not good, due to external forces be-

yond his control.’* On the basis of this negative rec-

ommendation and the absence of any out-of-state

parole program, the Adult Authority rescinded its

prior grant of parole on February 26, 1962.

Petitioner was granted a parole effective March 4,

1968, when suitable out-of-state arrangements had

been made. However, petitioner was not physically

released on parole until November 19, 1968, when such

arrangements were completed.

Prior Habeas Corpus Litigation

Petitioner extensively litigated the propriety of the

Adult Authority’s action in rescinding his parole. He

8Petitioner, too, had doubts about his ability to “make it” if he

were paroled in California. In a letter dated May 29, 1963, to Mr.

John W. Brewer of the Adult Authority, petitioner said:

“Mr. Brewer there are more people than just Henry [il-

legible], that have concerned themselfs with my demise, he

was not the only one I testified in court against there were

others that I was the cause of there arrest and conviction, and

still others, that were unaware of my actions and the part I

played until they was brought before the federal grand jury

then they realized that I was the causer. They now look upon

me with acrimony and violence. They are on the streets now!

This is my life! my only life! please don’t let them spill my

blood. Don’t force me into a parole in the State of California.

For how could I complete a parole in a state of trepidation?

God knows that I do not want to come back to your prison.”

APMED RET EDGE RET EE GRE LLY RN TEINS LEN PIT LALA OY SDI RD BRS MIP Et wy Seer *s wey

a Rive a dhs ss as :

7

filed a petition for a writ of habeas corpus in the Kern

County Superior Court on April 2, 1965, but it was

denied on April 15 (No. 726). He filed a similar pe-

tition in the California Court of Appeal for the Fifth

Appellate District on July 2, 1965, but that was denied

the same day (5 Crim. 192). He then filed a petition

in the California Supreme Court on July 21, 1965,

which was denied on August 18 (Crim. No. 9208).

Petitioner also sought relief in the federal courts.

On May 17, 1965, he filed a petition for a writ of

habeas corpus in the United States District Court for

the Central District of California,® but it was denied

on June 7, 1965 (Smith v. Lloyd, No. 65-729-Y). He

filed another petition on September 27, 1965, which

was also denied on October 5, 1965 (Smith v. Lloyd,

No. 65-1416-Y). In denying the application, the Dis-

trict Court observed that: “The petition shows that

parole was rescinded because of the refusal to serve it

within the State. Parole is a matter of grace and it is

not the province of the person affected to dictate the

condition under which it will be granted.”

Underlying State Litigation

On April 17, 1968, petitioner filed a complaint for

declaratory relief in the Kern County Superior Court

(No. 102331), but when the matter was heard and the

court discovered that petitioner really sought release

®At the time these cases were filed, the District Court was de-

nominated the United States District Court for the Southern

District of California, Central Division. As the result of a re-

organization of the district courts in California, this same court is

now the United States District Court for the Central District of

California.

|

8

from custody, the declaratory-judgment action was

suspended pending an application for habeas corpus

relief. On October 21, 1968, petitioner filed an appli-

cation for habeas corpus relief with the Kern County

Superior Court (No, 884). In this petition, it was al-

leged that continued detention was unlawful because:

(a) the Adult Authority improperly concluded that

petitioner had “rejected” the conditions of parole,

since petitioner had done nothing more than raise

questions about the wisdom of a parole in California,

and (b) petitioner had not been informed that if he

refused to be paroled in California, his parole date

could be rescinded. An evidentiary hearing was held

and on February 25, 1969, the petition was granted

and petitioner ordered discharged. The action of the

Kern County Superior Court was based upon the fol-

lowing findings of fact and conclusions of law:

“3. On April 25, 1961, the Adult Authority set

petitioner’s term on the above convictions at seven

and one half (714) years with four and one half

(414) years to be served on parole.

“4. On February 26, 1962, the Adult Authority

rescinded its action of April 25, 1961.

**5. Said action of February 26, 1962, departed

from the Adult Authority’s usual custom and

practice of waiting 90 days from and after pa-

role and before referring the matter to the full

board and was taken for no reason other than

petitioner’s expressed reluctance to spend his pa-

role in California and in spite of the fact that pe-

titioner had already worked out a tentative plan

for residence in another state.

LOS BBP LOGS OLOGY OS LE ® SEG BOA 0 I DG eS had ion < : ~~“. wr ov - ¥

foes Fr > a LOTT PR TA Pr ey SME PEGE EOE

9

“6. At no time was any condition of parole

regarding place of residence imposed by the Adult

Authority or rejected by petitioner. The action

of the Adult Authority of February 26, 1962 was

arbitrary, capricious and without just cause.

CONCLUSIONS OF LAW

“(a) Petitioner’s sentence, as established by

the Adult Authority, may not be rescinded by

said Authority without just cause.

“(b) The action of the Adult Authority in

the instant case was arbitrary, capricious and

without just cause.

“(¢e) Petitioner is entitled to be discharged.”

Petitioner was discharged upon receipt of this

order.

ARGUMENT

I

THE CIVIL RIGHTS ACT WAS NOT INTENDED TO RENDER

STATES LIABLE IN MONETARY DAMAGES FOR THE CON-

DUCT OF THEIR EMPLOYEES.

Petitioner suggests that this Court grant certiorari

to authoritatively resolve the question of State liabil-

ity under the Civil Rights Act of 1871; an issue upon

which there is no decision of this Court directly in

point. “It is petitioner’s contention that this unan-

swered question is too vital to the protection of

individuals’ Constitutional rights to be left to the vari-

ances of lower Court opinions.” (Petition, p. 11, foot-

note omitted) Were there indeed any “variances of

— Pee POTOSI x omer pete

10

lower Court opinions,” respondent too would urge this

Court to hear this case. But a grant of certiorari

herein would be a needless squandering of this Court’s

limited resources, for the lower federal courts are

unanimous in holding that a State is not liable in

monetary damages for suits brought against State em-

ployees under provisions of the Civil Rights Act.

Neal v. Georgia, 469 F.2d 446, 448 (5th Cir. 1972) ;

Meyer v. New Jersey, 460 F.2d 1252, 1253 (3d Cir.

1972) ; United States ex rel. Foreman v. New Jersey,

449 F.2d 1298 (3d Cir. 1971); Collins v. Moore, 441

F.2d 560, 551-52 (5th Cir. 1971); Gambocz v. Sub-

Committee on Claims, 423 F.2d 674, 675 (3d Cir.

1970) ; Fear v. Pennsylvania, 413 F.2d 88, 89 (3d Cir.),

cert. denied, 396 U.S. 935 (1969); United States ex

rel. Gittlemacker v. County of Philadelphia, 413 F.2d

84, 86 (3d Cir.), cert. denied, 396 U.S. 1046 (1969) ;

Whitner v. Davis, 410 F.2d 24, 29 (9th Cir. 1969);

Stewart v. Minnick, 409 F.2d 826 (9th Cir. 1969) ;

Deane Hill Country Club, Inc. v. City of Knoxville,

379 F.2d 321, 324 (6th Cir. 1967); Loux v. Rhay, 375

F.2d 55, 58 (9th Cir. 1967) ; Clark v. Washington, 366

F.2d 678, 680-81 (9th Cir. 1966); Williford v. Cali-

fornia, 352 F.2d 474, 476 (9th Cir. 1965); United

States ex rel. Lee v. Illinois, 343 F.2d 120 (7th Cir.

1965).

The Court of Appeal based its decision upon the

opinion of this Court in Monroe v. Pape, 365 U.S.

167, 187-91 (1961), wherein this Court examined the

genesis of the Civil Rights Act of 1871 and concluded

that Congress intended liability to extend only to

SS enone

11

natural persons and not to municipalities. Such re-

liance upon Monroe is sound. If the Act was not in-

tended to apply to municipalities, it would hardly be

reasonable to suggest that the statute was intended to

apply to the States, despite the fact that the munici-

palities of which State is composed are themselves

immune from suit. Williford v. California, 352 F.2d

474, 476 (9th Cir. 1965). Thus the lower federal courts

are unanimous in the view that a State is not a

“person” within the purview of the Civil Rights Act.

United States ex rel. Foreman v. New Jersey, 449

F.2d 1298 (3d Cir. 1971); Fear v. Pennsylvania, 413

F.2d 88, 89 (3d Cir.), cert. denied, 396 U.S. 935

(1969) ; Whitner v. Davis, 410 F.2d 24, 29 (9th Cir.

1969) ; Deane Hill Country Club, Inc. v. City of Knoz-

ville, 379 F.2d 321, 324 (6th Cir. 1967); Williford,

supra; United States ex rel. Lee v. Illinois, 343 F.2d

120 (7th Cir. 1965).

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

(1973), petitioner claims that this Court has limited

Monroe to municipalities, and has in Carter indicated

that the Civil Rights Act was intended to apply to the

States (Petition, pp. 14-15). Carter, however, is in-

apposite and does not stand for the proposition that

States are liable for monetary damages; the decision

actually discussing States only insofar as the Act im-

poses liability upon persons acting under the color of

law of any “‘State or Territory.” This Court has in

fact only recently reaffirmed Monroe v. Pape insofar

as it has pointed out that liabilitv under the Act ex-

tended only to “persons.” See City of Kenosha v.

a

12

Bruno, 412 U.S. 507, 512-13 (1973); Moor v. County

of Alameda, 411 U.S. 693, 706 (1973).

II

CALIFORNIA HAS NOT AND CAN NOT CONSENT TO SUITS IN

FEDERAL COURTS UNDER THE CIVIL RIGHTS ACT

Petitioner asserts that California is amenable to

federal Civil Rights Suits because, under various pro-

visions of State law, California has consented to suits

for damages. There are three distinct reasons why

petitioner’s contention is without merit.

(1) Under the Eleventh Amendment, a State can-

not be sued by its own citizens without its consent.

Hans v. Louisiana, 134 U.S. 1, 10-21 (1890). Under

the California Tort Claims Act, the State has con-

sented to suits under limited circumstances in state

courts. California has not consented to being sued

in federal courts under provisions of the federal Civil

Rights Act. See Whitner v. Davis, 410 F.2d 24, 29

(9th Cir. 1966); Clark v. Washington, 366 F.2d

678, 680 (9th Cir. 1966); see also Gambocz v. Sub-

Committee on Claims, 423 F.2d 674, 675 (3d Cir.

1970).

(2) Even under California law, the State is im-

mune from suits for damages arising out of “any in-

jury resulting from determining whether to parole or

release a prisoner or from determining the terms and

conditions of his parole or release or from determin-

ing whether to revoke his parole or release.” Calif.

: OSORNO ID LE SSE NEE PEEL AS MATRA GS ALE ESSE CLITA MEFS LO IEG DLN I EL LOOT LE AON A ABE

y

. ae FR oxen,

13

Gov. Code §845.8(a). Whatever California has

consented to, it has not consented to suits such as peti-

tioner’s which arise out of an alleged erroneous rescis-

sion of parole.

(3) A State may consent to be sued. Parden v.

Terminal R. Co., 377 U.S. 184, 186 (1964). However,

parties cannot by “consent” create jurisdiction in a

federal court which had no jurisdiction in the first

place. Mills v. Brown, 42 U.S. (16 Pet.) 337, 339

(1842). Thus the parties cannot “consent” to federal

jurisdiction which purports to rest upon provisions

of the Civil Rights Act when that Act does not ex-

tend liability under those circumstances. See City of

Kenosha v. Bruno, 412 U.S. 507, 511-12 (1973). Since

the Civil Rights Act was not intended to apply to

States in the first place (see Argument I, supra), Cal-

ifornia cannot “consent” to being sued under any of

its provisions.

Tit

A STATE CANNOT BE SUED FOR MONETARY DAMAGES

UNDER TITLE 28, UNITED STATES CODE, SECTION 1331

Relying upon Bivens v. Siz Unknown Fed. Narcot-

ics Agents, 403 U.S. 388 (1971), petitioner asserts

that the State of California can be sued for “vio-

lations” of federal constitutional rights under title

28, United States Code, section 1331; a remedy wholly

independent of the Civil Rights Act (Petition, pp. 10,

20-23). But as the Court of Appeal correctly observed,

Bivens ‘‘is wholly concerned with questions of federal

|

14

claims against individuals—not sovereign immunity.”

Bivens does not purport to abrogate the Eleventh

Amendment which renders States immune from suits

without their consent, even if suit is allegedly based

upon federal constitutional rights, Parden v. Terminal

R. Co., 377 U.S. 184, 186 (1964).

CONCLUSION

For the foregoing reasons, it is respectfully submit-

ted that the petition for a writ of certiorari should

be denied.

Dated, January 11, 1974.

EVELLE J. YOUNGER,

Attorney General of the State of California,

JACK R. WINKLER,

Chief Assistant Attorney General—

Criminal Division,

EpwakrbD P. O’BRIEN,

Assistant Attorney General,

DERALD E. GRANBERG,

Deputy Attorney General,

CuHakRLEs R. B. Kirk,

Deputy Attorney General,

Attorneys for Respondents.