# Brief for the Respondent in Opposition — Smith v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondent in Opposition
- **Published:** January 1, 1974
- **Citation:** 415 U.S. 914

## Text

We

Subject Index

Page

ERE AL AD AR PONE ON LEER NAN ps a 1
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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
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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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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
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|

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
pe ——s --

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

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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.

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