Amicus Curiae Brief — Spomer v. Littleton
Supreme Court brief1974
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SUPREME COURT, U. SyppEME ME COURT
OF THE UNITED STATES}
October Term, 1972
No. 72-955
W. C. SPOMER, State's Attorney of
Alexander County, Illinois,
Petitioner,
Vv.
EZELL LITTLETON, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
| BRIEF OF THE DISTRICT ATTORNEY OF THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
AS AMICUS CURIAE
JOSEPH P. BUSCH
District Attorney of
Los Angeles County
18-709 Criminal Courts
Building
210 West Temple Street
Los Angeles, California 90012
Attorney for Amicus Curiae
Of Counsel:
HARRY B. SONDHEIM
Acting Head, Appellate Division .
ARNOLD T. GUMINSKI
Deputy District Attorney
Appellate Division
Office of the District Attorney
County of Los Angeles
849 South Broadway
Los Angeles, California 90014
Telephone: 213-624-2761
TOPICAL INDEX
Page
Interest of the Amicus Curiae 2- 8
Summary of the Argument 8=11
Argument . 11-39
I While 42 USC § 1983 Authorizes 11-15
Injunctive Relief for Viola-
tions of the Equal Protection
Clause, the Injunctive Relief
Contemplated by the Court
Below Violates the Principles
of Comity, Federalism, and
Equity established by this
Court
II The Doctrine of the Court 16-26
Below Respecting Equitable
Relief Subverts the Purposes
of the Immunity of State
Judges or Prosecuting Attorneys
Under 42 USC } 1983
III The Supervision of State Court 26-31
Judges or Prosecuting Attorneys
Contemplated by the Court
Below is Singularly Inappro-
priate as a Judicial Function
IV Assuming that Equitable 31-39
Relief Authorized by 42 USC
$ 1983 Encompasses the Type
of Mandatory Injunction
Contemplated by the Court
Below, it Should Be Limited
to those Officials who have
Intentionally and Knowingly
Failed to Enforce Criminal
Laws. based upon Unjustifiable
Classification of Victims
Conclusion 39
Appendix A: Relationship between rf
Ethnic Group and Pattern of
Treatment
ig
TABLE OF AUTHORITIES CITED
Cases Page
Adams v. City of Park Ridge,
293 F.2d 585 36
Agnew v. City of Compton, 239 36
F.2d 226
Ah Sin v. Wittman, 198 U.S. 500 32
Bauers v. Heisel, 361 F.2d 581 16
Boyle v. Landry, 401 U.S. 77 33
Bramlett v. Peterson, 307 #*.Supp. 19
1311
Byrne v. Karalexis, 401 U.S. 216 33
Cleary v. Bolger, 371 U.S. 392 25
Cobb v. City of Malden, 202 F.2d 701 36
Collins v. State of Florida,
432 F.2d 60 35
Coolidge v. New Hampshire,
Deane Hill Country Club, Inc. v.
City of Knoxville, 379 F.2d 321 35 .36,357,38
Diamond v. Pitchess, 411 F.2d 565 36
District of Columbia v. Carter, 13
34 L.Ed.2d 613
Dyson v. Stein, 401 U.S. 200 33
Educational Equality League v. Tate,
472 F.2d 612 36
Ganger v. Peyton, 379 F.2d 709 29
Garren v. City of Winston-Salem, 36
North Carolina, 463 F.2d 54
Gibson v. Berryhill, 41 L.W. 4576 14
Greenwood v. Peackock, 384 U.S.-808 Fete
Haley v. Troy, 338 F.Supp 794 19
Handy Cafe v. Justices of the 33,354,536
Superior Court, 248 F.2d 485
38
iii
Harkless v. Sweeny Independent
School District, 427 F.2d 319
Hewitt v. City of Jacksonville,
188 F.2d 423
Hilliard v. Williams, 465 F.2d 591
Jacobson v. Scheefer, 441 F.2d 127
Kenney v. Fox, 288 F.2d 228
Ker v. California, 374 U.S. 23
Kostal v. Stoner, 292 F.2d 492
Law Students Civil Rights Research
Counsel, Inc. v. Wadmond,
299 F.Supp 117
Lehman v. City of Pittsburgh,
474 F.2d 21
Littleton v. Berbling, 468 F.2d 389
Loux v. Rhay, 375 F.2d 55
Madison v. Gerstein, 440 F.2d 338
Marlowe v. Coakley, 404 F.2d 70
McCray v. State of Maryland,
456 F.2d 1
Meyer v. State of New Jersey,
460 F.2d 1252
Mills v. Larson, 56 F.R.D. 63
Mitchum v. Foster, 407 U.S.225
Monroe v. Pape, 365 U.S. 167
Moor v. County of Alameda,
41 L.W. 4627
Moss v. Hornig, 314 F.2d 89
Newman v. U.S., 382 F.2d 479
Oyler v. Boles, 368 U.S. 448
Page
36,37
13
13 ,36,37
36,37
le
26 ,28,29
oe
iv
Palermo v. Rockefeller, 323
F.Supp 478
Peckham v. Scanlon, 241 F.2d 761
Perez v. Ledesma, 401 U.S. 82
Pierson v. Ray, 386 U.S. 547
Puett v. City of Detroit,
Department of Police,
52> £ 620 594
Rakes v. Coleman, 318 F.Supp 181
Robichaud v. Ronan, 351 F.2d 533
Rouselle v. Perez, 293 F.Supp 298
Samuels v. Mackell, 401 U.S. 66
SanAntonio School District v.
Rodriquez, 36 L.Ed.2d 16
Schnell v. City of Chicago,
407 F.2d 1084
Shadwick v. City of Tampa,
407 U.S. 345
Shock v. Tester, 405 F.2d 852
Silver v. Dickson, 403 F.2d 642
Smith v. U.S., 375 F.2d 243
Snowden v. Hughes, 321 U.S. 1
Spillman v.-U.S8,, 413 F.2d, 527
Stambler v. Dillon, 288 F.Supp
646
Stefanelli v. Minard, 342 U.S. 117
Turack v. Guido, 464 F.2d 535 _
Tenney v. Brandhove, 341 U.S. 367
Two Guys from Harrison-Allentown
v. McGinley, 366 U.S. 582
United States v. Brokaw,
60 F.Supp 100
Page
19
19
43
13,18,20,21,
22,23
17
16
18,20,21,23
“33
28
U.S. v. Clark, 249 F.Supp 720
U.S. ex rel. Gittlemacher v.
County of Philadelphia,
413 F.2d 84
U.S. v. Kysar, 459 F.2d 422
U.S. v. McLeod, 385 F.2d 734
U.S. ex rel. Lee v. People of
the State of Illinois,
343 F.2d 120
Williford v. People of Calif.,
352 F.2d 474
Yick Wo v. Hopkins, 118 U.S. 356
Younger v. Harris, 401 U.S. 37
Statutes
28 USC §
42 USC
42 USC
2283
L972
1983
tOr tO?
42 USC § 1988
U.S. Supreme Court Rule 42
Other Authorities
A Study of the California
Penalty Jury in First—Degree
Murder Cases, ol Stanf. L.R.
ot Gace issue, June 1969)
A 4
"Prosecution of Adult Felony De-
fendants in Los Angeles County:
A Pol:cy Perspective," Rand
Corporation, by Peter W.
Greenwood, Sorrel Wildhorn,
Eugene C. Poggio, Michael J.
Strumwasser and Peter DeLeon
Page
19
35
26
12,19
35
35
6,12
14,33
13
37
2,8,9,10,11,12,
13,16,18,21,25,
Fs Pe 3 PR Se Pe ee
36,37,38
36
5
12
6,7
IN THE
SUPREME COURT |
OF THE UNITED STATES
October Term, 1972
No. 72-955
W.C. SPOMER, State's Attorney of
Alexander County, Illinois,
Petitioner, di
T.
EZELL LITTLETON, MANKER HARRIS,
JAMES WILSON, CARL HAMPTON,
HAZEL JAMES, WALTER GARRETT,
CHARLES KOEN, FRANK WASHINGTON,
CURTIS JOHNSON, CHERYL GARRETT,
YVONDA TAYLOR, RUSSELL DEBERRY,
ROBERT MARTIN, PRESTON EWING, JR.,
JAMES BROWN, HERMAN WHITFIELD, WALLACE
WHITFIELD, LEROY LAMBERT, By His
Father and Next Friend, HOBERT
LAMBERT, MORRIS GARRETT, By His
Father and Next Friend, LEVI GARRETT,
Individually and as Representatives
of a Class,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
BRIEF OF THE DISTRICT ATTORNEY OF THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
AS AMICUS CURIAE
This brief is filed with this Court pur-
suant to the authority found in paragraph 4
of Rule 42 of the Supreme Court Rules.
on Dias
, INTEREST OF THE AMICUS CURIAE
The United States Court of Appeals for
the Seventh Circuit has announced in the
instant casel/ the novel doctrine that where.
it is "alleged and proved .. . that state
officials consisttntly, designedly and egre-
giously have, under color of law, deprived an
entire group of citizens of their civil rights "
(468 F.2d at 415), then a federal court, pur-
suant to 42 USC § 1983,2/can grant injunctive
relief which incluges provision for continuing
supervision of state court judges or prose-
cuting attorneys in order to prevent unconsti-
tutional class discrimination in the enforce-
ment of the criminal laws of the state. The
court below, although eschewing the implication |
that the injunctive relief "require[s] the
district court to sit in constant, day-to-day
supervision of either state court judges or
1. The case is reported as Littleton v.
Berbling (1972) 468 F.2d 389.
2. 42 USC § 1983 provides: "Every person
who, under color of any statute, ordinance,
reguletion, custom or usage, of any State or
Territory, subjects or causes to be subjected
any citizen of the United States or other
person within the jurisdiction thereof to
the deprivation of any rights, privileges
or immunities 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."
4
the State's attorney," provided the district
court with "some guidelines as to what type
of remedy might be imposed." (468 F.2d at
414.) The injunctive relief contemplated
by the court below was indicated as follows:
“An initial decree might set out the —
general tone of rights to be protected
and require only periodic reports of
various tyres of ageregate data‘*on
actions on bail and sentencing and
dispositions of compliants. Neverthe-
less, we have complete confidence in
the district court's ability to set
up further guides as required”~ and
if ngcessary to consider individual
decisions.”” Difficulty of formu-
lating a remedy if s complaint is
proved following a trial cannot be
grounds for dismissing the complaint
ab initio. We cannot so easily
belittle the powers of 2 court of
equity.nor the ability of district
judges who have grappled with dif-
ficult remedies before, €-£:» school
desegregation orders, railroad .re- ss
organizations." [Note] "52 E-g-»
Abrams, internal Policy: Guiding the
Exercise of Pre secutorial Discretion.
19 UcC.L.A. L. Revs 2. (1971). [9]
i
[Note] 53 Id. at 45-49 discussing Regina v.
Commissioner of Police ex rel. Blackburn.
[1968] 1 Q.B. 118." (468 F.2d at 414-415.)
There can be no doubt that District Judge
Dillin in his dissenting opinion was quite
right in declaring that "[t]he majority holds,
for the first time, that a federal district
court has the power to supervise and to reg-
ulate by mandatory injunction the discretion
which state court judges and state's attorneys
“may exercise within the limits of the powers
vested in them by law." (468 F.2d at 415.)
The expression of confidence by the court below
"in the district court's ability to set up
further guides as required and if necessary to
consider individual decisions" (468 F.2d at 415)
warrants petitioner W.C. Spomer's interpretation
that the court below holds that "[t]he District
Court can require, under pain of contempt, that
the prosecutor bring a particular change and
prosecute it in a manner the District Court
regards as sufficiently competent." (Petition
by W.C. Spomer, States Attorney of Alexander
County, Illinois,at page 7.)o/
3. Although we submit this brief generally
in support of petitioner W.C. Spomer (No. 72-955)
much of what we say is relevant to the contentions
made by petitioners Michael O'Shea and Dorothy
Spomer (No. 72-953) and petitioners Berbling
and Shepherd (No. 72-1107). This Court has
granted certiorari as to both No. 72-953 and
No. 72-955.
‘ -5-
* :
A decision by this Court uphoiding the
doctrine announced by the court below would
have a profound impact upon the administra-
tion of criminal justice in state proceedings
and would seriously dislocate federal-state
relations in this sensitive area.
The District Attorney of Los Angeles
County is responsible for the prosecution of
felonies and many misdemeanors in the County
of Los Angeles which has a population o} over
7,000,000. With 450 prosecuting attorneys uncer
his supervision, his office is the .-
fas
4
ita]
49)
r
prosecuting agéncy in thé United States. Like
many counties or municipalities, the County of
Los Angeles has a population comprising a
multiplicity of racial, ethnic, religious ‘or
other groups based’upon “suspect” classifications,
such as race, national origin, alienage, indi-
gency, or illegitimecy. (See concurring
opinion by Stewart, J., San Antonio School
Dietrict v. Rodriquez (1973) U.S... ° =, 36
L.ed.ed 16. 56, 93 '°S.Ct. 327. |
> - It is quite obvious, wé feel, that
a litigation with-the view cf obtaining the «
type of injunctive relief contemplated by the
court below in the instant case would severely
burden the administration of justice in both
w
-
>
federal and state courts.
wallet:
In view of the foregoing, we think it appro-
priate to communicate to this Court our views
respecting the novel doctrine announced by the
court below. We modestly think that the expres-
sion of our concern in this matter will be seen
in the light of the fact that it is consistent
with our determination that criminal justice in
the County of Los Angeles will not be "applied
ahd administered by public authority with an
evil eye and an unequal hand, so as practically
to make unjust and illegal discriminations be-
tween persons in similar circumstances, ..."
Yick Wo v. Hopkins (1886) 118 U.S. 356, 373, 30
L.Ed. 220, 227, 6 S.Ct. 1064. An evidence of
our determination to that end can be seen in the
release on April 24, 1973, noticed in the :
national press, of a Rand Corporation report
entitled PROSECUTION OF ADULT FELONY DEFENDANTS
IN LOS ANGELES COUNTY: A POLICY PERSPECTIVE,
Prepared for the Los Angeles County District
Attorney's Office, with Support of the National
Institute of Law enforcement and Criminal
Justice, L.E.A.A., Department of Justice,
R-1127-DOJ, March 1973, by Peter W. Greenwood,
Sorrel Wildhorn, Eugene C. Poggio, Michael J.
Strumwasser, and Peter De Leon. This report
contains comparative statistical data
ay 3
4/
This report was prepared pursuant to our
concerning racial and ethnic groups.
request and with our encouragement in order to
4. We include pages 56 through 59 of the
report in Appendix A to this brief to show how,
while acquittal and conviction rates, dis-
tribution of conviction levels, and distribution
of sentence levels reflect "moderate to small
(but statistically significant) disparities in
the treatment of defendants by ethnic group in
the courts" (Ibid.at 59), it cannot be con-
ciuded by such evidence alone that "state offi-
cials consistently, designedly and egregiously
have, under color of law, deprived an entire
‘roup of citizens of their civil rishte, .« .-."
("Slipheet" opinion of court below, at p. 40.)
That is, a superficial pattern of dis-
crimination can be established but such a pat-
tern may lead to fallacious inferences without
a thoroughgoing, in-depth, statistical study
which removes various sociological aspects
other than the classification in issue.
It is interesting to consider the Rand
finding that "(t]he black acquittal rate is
considerably higher than that of the Anglo-
Americans and, to somewhat lesser extent,
higher than that of the Mexican-Americans"
(Op. cit. at 56)in the light of this Court's
observation in Greenwood v. Peackock (1966)
384 U.S. 808, 842, 16 L.Ed.2d 944, 959, 86
S.€t. 1800, in disapproving the notion that a
a)
criminal case in a state court could be removable
to a federal court upon a petition alleging that
the defendant wis being prosecuted because of
his race, that "such removal petitions could,
of course, be filed not only by Negroes, but
also by members of the Caucasian or any other
race." (384 U.S. at-832,_16 L.Ed.2d at
O59 n. 35is3
_
ascertain, inter alia, what improvements could
be made in the criminal justice system with
respect to patterns of law enforcement which
suggest that justice is not meted out even-
handedly in the County of Los Angeles. With this
concern in mind, we submit this brief in order
that bona fide efforts by the Office of the
District Attorney of the County of Los Angeles
to improve law enforcement will not be impeded
by unnecessary litigation in federal courts.
SUMMARY OF THE ARGUMENT
We are not concerned with the questions
of injunctive relief pursuant to 42 USC § 1983
which have hitherto been considered by federal
courts with respect to state court judges or state
prosecuting attorneys. Thus, we are not con-
cerned with injunctive relief requiring the
performance of ministerial duties, or which
would prohibit pending or threatened prose-
cutions. Rather, the instant case involves the
development of a novel doctrine which would
authorize an on-going supervision of state court
judges or state prosecuting attorneys in order
to prevent the non-enforcement of criminal laws\
as to real or purported victims and where such ,
supervision would necessarily or probably require
review of individual cases where prosecutions
have not been undertaken at the requests of
real or purported victims of crimes,
-G-
°
We argue that such equitable relief, in
the form or nature of 3 mandatory injunction,
would be inconsistent with those principles
of federalism, comity, and equity which have
been formulated and applied by this Court.
Moreover, we contend that the doctrine.
announced by the court below is inconsistent
with the purposes underlying the doctrine that
42 USC § 1983 did not abolish the common-law
immunities of state ofticials performing judi-
cial or quasi-judiciai duties.
We do not urge that 42 US
all injunctive relic! with respect to the
judicial or quasi-gucicial act
officials to wnom the common-law immunities
apply. We do, however, contend that the
supervision by way of mandatory injunction
such as that contemp ated by the court below:
of state officiais performing judicial or
quasi-judicia™ dutic* wnich invoive discretion
not to prosecute woula so undermine the purposes
of the common-law immunities. that no reason ‘
could be discerned for maintaining such im-
munities even in Jdamege suits uncer S$ 1983.
Furthermore, .! would appear that under
the constitutional separation o1 powers, there
is no reason for bel «ving (but every reason
to the contrary) thic, vederad suiges should
review the aiseretioniry acts ol federal
~10~-
prosecuting officers by the type of supervision
contemplated by the court below. Any doctrine
that the Supremecy Clause overrides any con-
stitutional separation of powers pertaining to
the states cannot be without limitation in view
of the nature of each branch of government. The
reasons underlying separation of powers are based
upon common-law ideas and prudential considerations
which apply equally to the states. Such factors
should cause this Coui't to be especially leary
of permitting federal courts to embark on the
supervision of state officials on a grand scale.
Even if the civil rights complaint herein
would be deemed, in other circumstances, to be
legally sufficient to state a’claim under 42
USC § 1983, it does not follow that it is legally
sufficient to state a claim for injunctive
relief of the type contemplated by the court
below. Moreover, the evidence which would
justify such injunctive relief must necessarily
be more compelling than that which would justify
some lesser and more traditional type of equitable
relief, such as a prohibitory -injunction
respecting actual or threatened prosecutions.
Finally, we contend, that even if equitable
relief which would entail comprehensive super-
vision of state court judges or state prose-
cuting attorneys such as is contemplated by the
court below can be proper in some cases, we urge
ti.
that such relief should only extend to those
state officials who have intentionally and
knowingly engaged in unconstitutional law
enforcement rather than also to their col-
leagues or successors in office who are not
alleged and found to have abused their positions.
ARGUMENT
I
WHILE 42 USC § 1983 AUTHORIZES
INJUNCTIVE RELIEF FOR
VIOLATIONS OF THE EQUAL
PROTECTION CLAUSE, THE
INJUNCTIVE RELIEF CONTEMPLATED
BY THE COURT BELOW VIOLATES
THE PRINCIPLES OF COMITY,
FEDERALISM, AND EQUITY
ESTABLISHED BY THIS COURT
Of course, it must be conceded that mere
failure to prosecute other offenders is no
basis for a finding that there has been a
denial of equal protection of the laws. One
must show an intentional or purposeful dis-
criminetion in-order to show that unequal
administgation of a state statute offends the
etion clause. The conscious
exercise of some selectivity in. enforcement is
not in itself «= federal constitutional violation.
Statistics might imply a policy of selective
oi
TS
iindorcenent ;- but a finding of a denial of
equal protection is not-supported unless the
selection was deliberately based upon an
unjustifiable standard such as race, religion
or other arbitrary classification. See,
generally, Yick Wo v. Hopkins (1886) 118 U.S.
356, 30 L.Ed. 220, 6 S.Ct. 1064; Snowden v.
Hughes (1944) 321 U.S. 1, 88 L.Ed. 497, 64
S.Ct. 397; Oyler v. Boles (1962) 368 U.S. 448,
7 L.Ed.2d 446, 82 S.Ct. 501;. Moss v. Horni¢
(2d Cir. 1963) 314 F.2d 89. We agree, of course,
that "the sharp edge of the Supremacy Clause
cuts across all. such generalizations" such as
that "(a] federal court is-always reluctant to
interfere with state criminal proceedings,
because of statutory restraints and because of
respect for the doctrine of comity." (United
States v. McLeod (5th Cir.1967) 385 F.2d 734,
745; footnotes omitted.) But in considering
whether 42 USC § 1983 authorizes a federal
court to grant injunctive relief of a nature
as set forth by the court below, we bear in
5. An in-depth statistical study may dis-
close that, Once the effects of other sociolog-
ical aspects are removed, a defendant's race
becomes a neutral factor in the administration
of criminal justice although some data may
superficially suggest racial bi:s. See, for
example, A Study of the California Penalty Jury
in First-Degree Murder Cases, 21 Stanford L.Rev.
(Special Issue, June 1969) 1297, 1420-1421.
ob Se
mind the words of Mr. Justice Douglas in his
dissenting opinion in Pierson v. Ray, infra,
386 U.S. at 558, 565, 18 L.Ed.2d at 297, 301,
that "{t]Jhe question presented is not of
constitutional dimension; it is solely a
question of statutory interpretation."
There can be no doubt that in the light
of the history of the ancestor of 42 USC § 19830/
as set forth in the opinions of this Court con-
cerning it, that it "is proper for a person
adversely affected to bring an action under
42 USC § 1983 on the grounds that he has been
denied his rights under the equal protection
clause of the Constitution." (Shock v. Tester
(8th Cir. 1969) 405 F.2d 852, 855.) Section 1983
provides for equitable relief as a remedy and
this Court in Mitchum v. Foster, 407 U.S. 225,
has held that this statute constitutes an "ex-
pressly authorized" exception to the federal
anti-injunction statute (28 USC §.2283) which
©
6. The statute is derived from
§ 1 of the Ku Klux Klan Act of 1871, Act of
April 20, 1871, ¢ 22, 9 1, Stat-i13.
7. See Monroe v. Pape (1960) 365 U.S.
167, 172-178, 5 Lebd.2d 492, 497-500, 6] 5.Cih.
4733 Mitchum v. Foster (1972) 407 U.S. 225,
32. L.ma.2a 05, Ti 5#th7 9a SeCb.: 21943
District of Columbia v. Carter (1973) U.S.
» Je we tced 615, 621-623, 25 SeUts 602.
Ah.
provides that a federal court "may not grant an
injunction to stay proceedings in a State court
except as expressly authorized by Act of Congress,
or where necessary in aid of its jurisdiction,
or to promote or effectuate its judgments." But’
this Court has just recently re-affirmed in
Gibson v. Berryhill (1973) U.S. » Gl
LW 4576, 4579, that:
"As we expressly stated in Mitchum, nothing
in that decision purported to call into
question the established principles of
equity, comity and federalism which must,
under appropriate Circumstances, restrain .
a federal court from issuing such injunc-
tions. Id., at 243. These’ principles
have been emphasized by this Court many
times in the past, albeit under a variety
of different rubrics... .. Secondly,
there is the basic principle of federalism,
restated as recently as 1971 in Younger v.
Harris, 401 U.S. 37 (1971), that a federal
court may not enjoin a pending state
criminal proceeding in the absence of
special circumstances suggesting bad faith,
harrassment or irreparable injury that is
both serious and immediate."
This Court in Younger v. H.rris, 401 U.S. at
44, 27 L.Bd.2d at 675, 91 S.Ct. 746, said that
a vital consideration for restraining courts of
‘4
a1 5-
equity from interfering with criminal prose-
cutions is "the notion of ‘comity,' that is,
a proper respect for state functions, a recog-
nition of the fact that the entire country is
made up of a Union of separate state govern-
ments, and continuance of the belief that the
National Government will fare best if the
states and their institutions are left free
to perform their separate functions in their
separate ways." |
However, what is Dhvolved in the instant
‘case is not an a¢-zion which merely seeks
injunctive relief to enjoin state proceedings.
Rather, it is an action which would, if suc-
cessful, result in injunctive relief entailing
provisions for supervision and review of dis-
cretionary acts of state court judges and
prosecuting attorneys which’ would generate
undue pressures upon such officers to institute
criminal prosecutions, when otherwise such
prosecutions would not have been instituted,
in order to avoid cOmplaints that state laws
are being unequally and unlawfully enforced.
~ Such federal judicial interference with the
administration of state criminal justice. would,
it seems to us, be of far greater magnitude
and intens ity than that which would be entailed
ar only. preventive injunctive relief were
pranted:
alo
II.
THE DOCTRINE OF THE COURT BELOW RESPECTING
BPQUITABLE RELIEF SUBVERTS THE PURPOSES -
OF THE IMMUNITY OF STATE JUDGES OR
PROSECUTING ATTORNEYS UNDER 42 USC § 1983
Again, while not questioning the avail-
ability of equitable relief against state
judges or prosecuting attorneys as they have
been generally provided for in the reported
cases, we are nevertheless of the opinion that
the doctrine set ,forth by the court below
expands the scope: of equitable relief as to
such state officials ir violation of the
principles supporting the immunity of state
judges or prosecuting attorneys under § 1983
against suits. Our contention is based upon
the following argument.
It is generally maintained hat prosecut-
ing attorneys should have the same immunity as
is afforded judges in civil rights actions un-
der 42 USC § 1983, although such immunity is
not without limitation. In addition to the
Seventh Circuit, as evidenced by its opinion
in the instant case, see also: Bauers v.
Heisel (3d Cir, 1966) 3561 F.2d 581y 589-591;
Turack v. Guido (3d Cir. 1972).464 F.2d 535,
536; McCray v. State of Maryland (4th Cir. 1972)
456 F.2d.1, 2-3; Madison v. Gerstein (5th Cir.
1971) e440 Fld 338, 340-341; Kenney v. Fox
(6th Cir. 1956) 288 F.2d 228, 290; Puett v.
= me
City of Detroit, Department of Police (6th Cir.
1963) 323 F.2d 591, 593; Hilliard v. Williams
(6th Cir. 1972) 465 F.2d 1212; Robichaud v.
Ronan (9th Cir. 1965) 351 F.2d 553, 535-536;
Marlowe v. Coakley (9th Cir. 1968) 404 F.2d 70;
————
Kostal v. Stoner (10th Cir. 1961) 292 F.2d 492,
493-494, Such prosecutorial immunity is not
generally understood to encompass acts clearly
outside a prosecutor's jurisdiction; that is,
a prosecuting attorney who acts outside the scope
of his jurisdiction without authorization of law
cannot shelter himself by the plea that he is act-
ing under color of office. It is well said that
"(t]he immunity of 'quasi-judicial' officers
such as prosecuting attorneyS « « + derives,
not from their formal association with the
judicial process, but from the fact they exercise
a discretion similar to that exercised by judges
[and that] [1]ike judges,.they require the in-
sulation of absolute immunity to assure the
courageous exercise of their discretionary duties."
(McCray V. State of Maryland, supra, 456 F.2d at
3.) It should be noted that wftjhe key to the
immunity previously hela tc be protective to
the prosecuting attorney is that the acts, alleged
to have been wrongful, were committed by their
officer in the performance of an integral part
of the judicial process." (Robichaug v. Ronan,
supra, 351 F.2d at 536.) At least in damage.
suits, a prosecutor can have no vicarious liabil-
ity for the acts of his assistant against which
-18—
the assistant is immunized. (Madison v.
Gerstein, supra, 440 F.2d at 340.)
The almost uniform stand taken by the
courts of appeal, and we omit citations to
decisions by other courts, is a sufficient
reason, considered in the light of the opinions
by this Court in Tenney v. Brandhove (1951) 341
U.S. 367, 95 L.Ed. 1019, 71 S.Ct. 783 and
Pierson v. Ray (1967) 386 U.S. 547, 18 L.Ed.2d
288, 87 S.Ct. 1213, for the generally approved
doctrine that immunity for prosecutors is not
abolished by 42 USC § 1983.
Since it seems warranted for us to conclude
that this Court would hold that the common-law
immunity of prosecutors applies to actions brought
under 42 USC § 1983 (or related statutes), the
question arises to what extent does the doctrine
of immunity for judges or quasi-judicial officers
(particularly prosecuting attorneys) apply to
injunctive relief.
It has been generally held, declared by
dictum, or otherwise indicated that under 42
usc § 1983 (or other similar civil rights
statutes), the immunity of state judges or
state officers performing quasi-judicial func-
tions (such as prosecuting attorneys) pertains
to damage suits but does not preclude declar-—
atory or injunctive relief if prayed for. See,
e.g.: Silver v. Dickson (9th Cir. 1968) 403
F.2d 642, 643; Jacobson v. Schaefer (7th Cir.
«i9=
1971); 441 F.2d 127, 130; United States v.
McLeod (5th Cir. 1967) 385 F.2d 734, 738 n. 353
United States v. Clark (S.D.Ala. 1965) 249 :
F.Supp. 720, 727; Stambler v. Dillon (S.D.N.Y.
1968) 288 F. Supp. 646, 649; Rouselle v. Perez
(E.D.La. 1968) 293 F.Supp. 298, 299; Law
Students Civil Rights Research Council, Inc.
vy. Wadmond (S.D.N.Y. 1969) 299 F.Supp. 117,
123-124, aff'd, 401 U.S. 154, 27 L.Ed.2d 749,
91 S.Ct. 720; Bramlett v. Peterson (M.D. Fla.
1969) 3C7 F.Supp. 1311, 1321-1322; Rakes v.
Coleman (E.D.Va. 1970) 318°%.Supp. 181, 192;
Palermo v. Rockefeller (S.D.N.Y. 1971) 323
F.Supp. 478, 482; Haley v. Troy (D.Mass. 1972)
338 F.Supp. 794, 800; Mills v. Larson (W.D.Pa.
1972) 56 F.R.D. 63, 67-68, and, of course, the
instant case. Of course, as the majority
opinion recognizes, the comprehensive nature
of the equitable relief which it contemplates
compels the conclusion that "this appears to be
a case of first impression as to the type of
relief approved, . . ." (468 F.2d at 414.) This
case does not involve injunctive relief pertaining
to civil actions, or which prohibits pending or
8, Although the court below noted
Peckham v. Scanlon (7th Cir. 1957) 241 F.2d 761
in its opinion in the instant case (468 F.2d at
406), it appears that it did not notice that
it sub silencio overruled Scanlon because the
plaintiff therein prayed for both damages and
equitable relief (241 F.2d at 762-763).
pT
threatened criminai prosecutions, or the en-
forcement of an unconstitutional law, or re-
quiring the performance of ministerial acts.
Rather, as Judge Dillin in his dissenting’ opir.ion
observed, "(t]he majority holds, for the first
time, that a federal district court has the
power to supervise and to regulate by mandatory
injunction the discretion which state court
judges and state's attorneys may exercise within
the limits of the powers vested in them by law"
and that "in the cases cited by the majority
e « « the equitable relief granted has in-
variably been in the form of a prohibitory
injunction, confining such officials to the
limits of their legal authority." (468 F.2d
at 415; footnote omitted. )
Bearing in mind that we are thus concerned
with the issue of availability of injunctive
relief which includes provision for the compre-
hensive supervisory review of discretionary
acts by state judges and prosecutors in criminal
prosecutions, it behooves us to see why this
Court in Tenney and Pierson held respectively
that the common-law immunity of legislators
for acts within the legislative role and that
the immunity of judges for acts within the
judicial role were not abolished by $ 1983.
In Tenney the Court explained:
"The claim of an unworthy purpose
does not destroy the privilege. Legislators
a
are immune from deterrents to the un-
inhibited discharge of their legislative
duty, not for their private indulgence
but for the pubiic good. One must not
expect. uncommon courage even in legis-
lators. The privilege would be of little
value if they could be subjected to the
cost and inconvenience and distractions
of a trial upon a conclusion of the
pleader, or to the hazard of a judgment
against them based upon a jury's spec-
ulation as to motives." (341 U.S. at
377, 95 L.Ed. at 1027.)
In Pierson, the Court,in explaining its
holding that the common-law doctrine of judicial
immunity applies to damage suits wnder § 1983,
said:
"Few doctrines were more solidly
established at common law than the
immunity of judges from liability for
damages for acts committed within their
judicial jurisdiction, as this Court
recognized when it adopted the doctrine,
in Bradley v. Fisher, 13 Wall 335, 20
L ed 646 (1872). ° This immunity applies
even when the judge is accused of acting
maliciously and corruptly, and it ‘is
not for the protection or benefit of a
malicious or corrupt judge, but for the
benefit of the public, whose interest
Se
it is that the judges should be at liberty
to exercise their functions with indepen-
dence and without fear of consequences,'
(Scott v Stansfield, LR 3 Ex 220, 223 (1868)
quoted in Bradley v Fisher, supra, 349;
note;.at 350, 20 L ed at 650.) It is a
judge's duty to decide all cases within
his jurisdiction that are brought before
him, including controversial cases that
arouse the most intense feelings in the
litigants. His errors may be corrected on
appeal, but he should not have to fear that
unsatisfied litigants may hound him with
litigation charging maiice or corruption.
Imposing such a burden on judges would
contribute not to principled and fearless
decision-making but to intimidation."
(386 U.S. at 554, 18 L.Ed.2d at 294-295.)
It is noteworthy that, although Mr. Justice
Douglas dissented from that holding, he ac-
knowledged the importance of exempting judges
from liability for the consequences of their
honest mistakes and that the judicial function
involves an informed exercise of judgment.
(386 U.S. 558, at 566, 18 L.Ed.2d 297, at 301.)
When one considers the reasons why there
should be immunity from damage suits for state
judges and prosecuting attorneys, the conclusion
is compelled that the reasons justify the appli-
cability of the immunity to such injunctive
a2 Fa
relief which would accomplish the same results
as the absence of the immunity from damage suits.
Judge Dillin clearly saw the necessity of this
conclusion when he maintained in his dissent-
ing opinion in ,the instant case that’
"the reasgn for the rule against damage
actions applies with equal force to man-
datory injunctions which seek to regulate
the exercise of discretion of judicial
and quasi-judicial officers. It would
be cold comfort for such an official to
be told by this Court; 'Be of good cheer!
We will protect your pocketbook, even as
we send you to jail.'" (468 F.2d at 419;
footnote omitted.)
But it is not, of course, merely the
threat of jail that would undermine the ration-
ale for judicial or quasi-judicial immunity
as the explanations by this Court in Tenney
and Pierson make clear. It is also the ap-
prehension of a comprehensive inquiry by the
federal judiciary of discretionary acts of
state judicial or quasi-judicial officers and
the inconveniences and distractions incident
thereto which would unduly inhibit such
officers in the exercise of their powers.
Whatever supposed gain for civil rights, the
present "ecological" equilibrium would be
radically upset were it now deemed that the
immunity doctrine does not encompass immunity
ue
=-2hn
from mandatory injunctions which entail the
supervision and review of discretionary judicial
and quasi-judicial acts.
Clearly, the doctrine propounded by Judge
Dillin is consistent with those holdings which
have permitted equitable relief against judges
and prosecutors because the federal courts did
not undertake a supervisory direction of the
administration of state criminal justice with
a provision for review of discretionary acts,
including review of decisions not to prosecute.
However, the doctrine announced by the court
below would be inconsistent with the contrary
philosophy held by this Court as evidenced, for
example, in Ker v. California (1963) 374 U.S.
23, 33, 10 L.Wi.2d 726, 736, $5 S.Ct. 1625, where
the Court declared that,
"although the standard of reasonableness is
the same under the Fourth and Fourteenth
Amendments, the demands of our federal
system compel us to distinguisn between
evidence held inadmissible because of
our supervisory powers over federal courts |
and that held inadmissible because prohibited
by the United States Constitution."
The overall supervisory review, albeit not
"constant, day-to-day supervision," contemplated
by the court below if actually undertaken would
constitute "direct intrusion in state processes
[which] does not comport with proper federal-
Se
state relationships," to use the words of
this Court in Cleary v. Bolger (1963) 371 U.S.
392, 401, 9 L.Ed.2d 390, 397, 83 S.Ct. 355.
Or, to borrow words from Stefanelli v. Minard
(1951) 342 U.S. 117, 120, 96 L.Ed. 138, 142,
Je S.Ct. a8)
"For even if the power to grant the
relief here sought may fairly and consti-
tutionally be derived from the generality
of language of the Civil Rights Act, to
sustain the diaim would disregard the
power of courts of equity to exercise
discretion when, in a matter of equity
jurisdiction, the balance is against
the wisdom of using their power. Here
the considerations governing that dis-
cretion touch perhaps the most sensitive
source of friction between States and
Nation, namely, the active intrusion of
the federal courts in the administration
of the criminal law solely within the
power of the States."
The very fact that the doctrine announced
by the court below is novel justifies the in-
ference that "the provisions of [42 USC § 1983]
do not operate to work a wholesale dislocation
of the historic relationship between the state
and the federal courts in the administration
of criminal justice." (Cf. Greenwood v.
Peacock (1966) 384 U.S. 808, 831, 16 L.Ed.2d
-26—
944, 959, 86 S.Ct. 1800.)
Tits
THE SUPERVISION OF STATE COURT JUDGES:
OR PROSECUTING ATTORNEYS
CONTEMPLATED BY THE COURT BELOW
IS SINGULARLY INAPPROPRIATE
AS A JUDICIAL FUNCTION |
The discretion of the Attorney General of
the United States in choosing whether to pros-
ecute or not to prosecute, or to abandon a
prosecution already started, is absolute. Courts
are not free to interfere with the free exercise
of the discretionary powers of the attorneys of
the United States in their control over criminal
prosecutions. See, e.g., Smith v. United States
(5th Cir. 1967) 375 F.2d 243, 246-247; United
States v. Kysar (10th Cir. 1972) 459 F.2d 422,
424; Spillman v. United States (9th Cir., 1969)
413 F.2d 527, 530. Although this all follows
as an incident to the constitutional separation ~»
of powers, as Chief Justice (then Circuit Judge)
Burger observed in Newman v. United States (D.C.
Cir. 1967) 382 F.2d 479, 480:
"Few subjects are less adapted to
judicial review than the exercise by the
Executive of his discretion in deciding
when and whether to institute criminal
proceedings, or what precise charge shall
be made, or whether to dismiss a proceeding. _
once brought."
milan
The discretion of the prosecuting attorney
for the Unized States to be free from judicial
supervision of the discretionary control of
criminal prosecutions, including attempts to
compel a prosecuting attorney to initiate
proceedings », presupposes that. the conscious
‘exercise of some selectivity ‘in enforcement
is not in itself a federal constitutional
violation. As Chief Justice Burger commented:
"T>. say that the United States
Attorney must. literally treat every offense
and every offender alike is to delegate him
an impossible task; of course this concept
would negate discretion. Myriad factors
can enter into the prosecutor's decision.
Two persons may have committed what is
precisely the same legal offense but
the prosecutor is not compelled by law,
duty or tradition to treat them the same
as to charges. On the contrary, he is
expected to exercise discretion and common
sense to the ena that if, for example,
one is a young first offender and the
other older, with ‘a criminal record, or one
played a lesser and the other a dominant
role, one the instigator and the other
a follower, the prosecutor can and should
take such .actors into account; no court
has any jurisdiction to inquire into
-28—
or review his decision.
"It is assumed that the United States
Attorney will perform his duties and ex-
ercise his powers consistent with his
oaths; and while this discretion is sub-
ject to abuse or misuse just as is judicial
-discretion, deviations from his duty as
an agent of the Executive are to be dealt
with by his superiors." (382 F.2d at 481l-
482; footnotes omitted. )
It must be remembered, as was noted in
United States v. Brokaw (S.D.111.1945) 60 F.
Supp. 100, 101:
"That the United States District At- |
torney in his capacity as the public pros-
ecutor in his district is clothed with the
power and charged with the duties of the
Attorney General in England under the common
law is generally recognized and supported .
by the Federal Courts. [Citations omitted. ]
In this connection the federal prosecutor.
acts in an administrative capacity. He
is the representative of the public in
whom is lodged a discretion to be exercised
for the general public welfare, a dis-
cretion which is not to be controlled by
the courts, or by an interested individual,
or by a. group of interested individuals
who seek redress for wrongs committed
. -29-
against them by use of the criminal
process."
If the discretionary liberty of prosecut-
ing attorneys from judicial interference with
or review of discretion is grounded in the
common law (see Ganger v. Peyton (4th Cir. 1967)
379 F.2a 709, 713) and if "[fjew subjects are
less adapted to judicial review than the ex-
ercise by the Executive of his discretion in
deciding when and whether to institute crim-
inal proceedings, or what precise charge shall
be made, or whether to dismiss a proceeding
ence brought" (see Newman v. United States,
supra, 382 F.2d at 480), then there is all
the more reason to conclude that 42 USC § 1983
should not be used to permit federal courts to
systematically and comprehensively supervise
state court judges and prosecutors in the
exercise of their discretion merely as a pro-
phylactic measure to prevent racial or ethnic
discrimination.
The separation of executive and judicial
functions is grounded upon prudential consid-
erations. Thus, Coolidge v. New Hampshire
(1971) 403 U.S. 443, 449-453, 29 L.Ed.2d 564,
572-575, 91 S.Ct. 2022, held that search
warrants could not be issued by the state at-
torney general, acting as a justice of the
peace, under the Fourth Amendment, because
such an official was not a neutral and detached
-30—
magistrate. But it is the very confusion of
judicial and executive roles which compelled
the holding for as this Court explained:
"Without disrespect to the state law
enforcement agent here involved, the whole
point of the basic rule so well expressed
by Mr. Justice Jackson is that prosecutors
and policemen simply cannot be asked to
maintain the requisite neutyality with
regard to their own investigations - the
‘competitive enterprise’ that must rightly
engage their single-minded attention." (403
U.S. at 450, 29 L.Ed.2d at 573. Footnote
omitted. ) :
Cf. Shadwick v. City of Tampa (1972) 407 U.S.
345, 32 L.Ed.2d 783, 92 S.Ct.2119. Thus, we
submit that, quite apart from federal-state rela-
tions, the exercise by a federal court judge of
executive powers, such as is involved in super-
vising and reviewing decisions not to institute
or further prosecute criminal charges, is a con-
founding of roles not at all contemplated by
those who framed and adopted the Constitution.
Moreover, even if, at the outset, an adoption of
the executive power by the federal courts is
limited to the supervision of state officers ,the
exercise of such executive power by federal court
judges may well give rise to the fear that
'fwjere it [the power of judging] joined to the
executive power, the judge might behave with
=3l0
all the violence of an oppressor." Montesquieu,
SPIRIT OF LAWS, quoted in THE FEDERALIST No.°
47 (ed. by Jacob E. Cooke, Meridian Books -
1961) at 326. Our conclusion is that the
exercise of the executive power which is im-
plicit in the equitable relief sanctioned by
the court below is so incompatible with the
functions of the federal judiciary that this
Court should disapprove such use as a type of
the equitable relief permitted by 42 USC § 1983.
IV
ASSUMING THAT EQUITABLE RELIEF AUTHORIZED
<~, BY 42 USC § 1983 ENCOMPASSES THE TYPE
OF MANDATORY INJUNCTION COMTEMPLATED
BY THE COURT BELOW, IT SHOULD BE LIMITED
TO THOSE OFFICIALS WHO HAVE INTENTIONALLY
AND KNOWINGLY FAILED TO ENFORCE CRIMINAL
LAWS BASED UPON UNJUSTIFIABLE
CLASSIFICATION OF VICTIMS
Even if novel injunctive relief as con-
templated by the court below were deemed ap-
propriate, contrary to our contentions, we
urge that such relief should be limited to
those state officials who have intentionally
and knowingly failed to enforce the criminal
laws based upon some unjustifiable classifica-
tion of victims, such as race. Without
9. Additionally, we respectfully suggest
that the complaint should also allege sufficient
(continued on page 32.)
~ =
?
such a limitation, the federal courts would have
the authority to extend their supervision of
the administration of state criminal justice to
@@ those officials who are the colleagues or suc-
cessors in office of those who are individually
culpable for unequal and unlawful enforcement
of the laws.
In the instant case, petitioner W.C. Spomer
has been automatically substituted as a party |
to the extent the cause affects the State's 2
Attorney of Alexander County because '[o]ne of
the original parties to this action was Peyton
Berbling who was sued. individually and as State's
Attorney of Alexander County, Illinois [but] [o]n
December 4, 1972, Peyton Berbling was succeeded
as State's Attorney by W. C. Spomer." (Petition
by W. C. Spomer at p. 1.) There are no allega-
tions in the amended complaint to show that there
is reason to believe that petitioner W. C. Spomer
(continued from page 31)
facts which would justify the supervision and
review of discretionary acts of judicial or
quasi-judicial officers if such relief is re-
quested by the plaintiff(s). "No latitude of
intention should be indulged in a case like
this. There should be certainty to every intent
- e This is a matter of proof; and no fact
should be omitted to make it out completely,
when the power of a Federal court is invoked to
rege oc a (SE. course of Wittman (1005) 1
of a state." (Cf. Ah Sin v. Wittman (1905) 198
U.S. 500, 507-508, 49 L.Ed. ITs Ttus-1146,
25 S.Ct. 756.)
-33-
will discriminatorily enforce the laws as
allegedly did his predecessor. (Compare: Two
Guys from Harrison-Allentown v. McGinley (1961)
366 U.S. 582, 588-589, 6 L.Ed.2d 551, 556,
81 S.Ct. 1135.) We contend that those
same considerations of federalism, comity,
and equity, which have been recoghized in
Younger v. Harris and its companion cases22/
and the prudential considerations underlying
the separation of powers, should at least
restrain federal courts from fashioning
equitable relief which would control discre-
‘tionary acts of state judges or prosecuting
attorneys pursuant to claims for equitable
relief under 42 USC § 1983 as to such officials
who have not intentionally and knowingly
failed to enforce the law based upon an un-
justifiable classification, such as race, in
violation of the equal protection clause.
With respect to the colleagues of a
state official, the case of Handy Cafe v.
Justices of the Superior Court (lst Cir.
1957) 248 F.2d 485, is pertinent. In Handy
Cafe, a civil rights action under 42 USC
10. Samuels v. Mackell, 401 U.S. 66, 27
L.Ed.2d 688, SI S.Ct. 764; Boyle v. Landry,
401 U.S. 77, 27 L.Ed.2d 6b6 Tes Ct 7BEE 758;
Perez v. Ledesma, 401 U.S. 82, 27 L.Ed.2d 701,
ote : son v. Stein, 401 U.S. 200,
27 L.Ed.2d 781, S.Ct. 769; e v. Kara-
lexis, 401 U.S. 216, 27 L.Ed.2 a)
. 777-
2 SEI oH MIR eRe PU
-34-
1983 was filed against "the members of the
Superior Court and Supreme Judicial Court of the
Commonwealth of Massachusetts" for various acts
and omissions. Equitable, and other relief,
was prayed for. The Court of Appeals for the
First Circuit affirmed the judgment of the
district court dismissing the complaint and
in so doing explained, inter alia:
In addition to the foregoing, we
are bound to observe that we know of
no authority to the effect that 'the
members of the Superior Court and Supreme
Judicial Court of the Commonwealth of
Massachusetts' constitute suable legal
entities. Action under the Civil Rights
Act must be against the individual persons
or officials who, under color of their
respective state offices, subject a person
to denial of federal constitutional rights.
There are over thirty judges of the Massa-
chusetts Superior Court throughout the
Commonwealth and seven justices of the
Supreme Judicial Court. Obviously not all
of these persons could have been concerned
with the various state court proceedings
herein complained of. It does not appear
against which individual judgments for
damages and enforcement orders are sought to
be issued." (248 F.2d at 487.)
Our position that equitable relief should
-35-
not be granted under 42 USC § 1983 to those who
supervise state judges or prosecutors in the
exercise of their discretionary judicial or
quasi-judicial acts and who have not personally
violated federal constitutional or civil
rights is supported by the doctrine, held by
some courts, that a state or any state agency
or subdivision,which is but an arm of the
state government -— at least, when acting in
a sovereign, as distinguished from a proprietary
capacity-—is not liable as a "person" for the
purpose of 42 USC § 1983. (See e.g., Meyer v.
State of New Jersey (3d Cir. 1972) 460 F.2d
an United States ex rel. Gittlemacker v.
unty of Philadelphia (3d Cir. 1969) 413 F.2d 8h,
7 Hewitt v. City of Jacksonville (5th Cir.
1951) 188 F.2d 423, 424; Collings v. State of
Florida (5th Cir. 1970) 432 F.2d 60; Deane
Hill Country Club, Inc. v. City of Knoxville
(6th Cir. 1967) 379 F.2d 321, 324; United
States ex rel, Lee v. People of the State of
Illinois (7th Cir. 1965) 343 F.2d 120; Willi-
ford v. People of California (9th Cir. 1965)
352 F.2d 474; Loux v. Rhay (9th Cir. 1967)
375 F.2d 55, 58.) Some courts which hold to
this doctrine also maintain that the rule of non- :
liability of a body politic under § 1983 also
applies to suits for injunctive relief 2+
ty of Pittsbur
, 20; Bducational
11. See Lehman v. Ci
(3d Cir. 1973) 474 F.2d
sb en =36-
In Deane Hill Country Club, Ing. v. City of
Knoxville (6th Cir. 1967) 379 F.2d 321, the
implications of this two-fold doctrine are
clearly understood, In that case the defendants
were the City of Knoxville and George F.
McCanless, Attorney General of. Tennessee. The
Court of Appeals for the Sixth Circuit held that
the statute was inapplicable, and declared that
this court in Monroe v. Pape, supra, 365 U.S.
at 191 n. 50, "seemingly settled the question
of whether equitable relief against a munici-
pality could be obtained under Section 1983, "22/
(continued from page 35)
612 n. 1; Diamond v. Pitchess (9th Cir. 1969)
411 F.2d 565, ; Agnew v. City of Compton
(9th Cir. 1956) 239 F.2d 226, oO; Deane HT 11
Country Club, Inc, v. City of Knoxville (6th
tir 1 67) 379 Feed 321, 324; Cs Handy Cafe v.
Justices of the erior Court (lst Cir. 1957)
SE Poe LBS hers Cobb v. City of Malden (lst
Cir. 1953) 202 F.2d 701. ~~
Among those courts which take the contrary
view, see, e.g.: Harkless v. Sweeny Independent
School District (5th Cir. 1970) 427 F.2d BIS.
-323; Garren v. pt of Winston-Salem, North
Carolina (4th Cir. ° ; ams
of Park Ridge (7th Cir. 1961) 293 F.da-
Ve
585; nell v. of Chicago (7th Cir. 1969)
407 F.2d 1064. ~~
12. Just recently this Court has held in
Moor v. County of Alameda (1973) ___U.S. :
“ZI L.W. 4627, that a federal.cause of action
does not lie against a municipality under 42
uSC §§ 1983 and 1988 for the actions of its
officers which violate an individual's federal
civil rights where the municipality is subject
» to such liability under state law. The Court
> expressly noted that "the question...
continued on page
-37-
(379 F.2a at 324.) The court then proceeded
to declare: :
"Nor can this action be maintained .
against defendant McCanless, Attorney |
General of the State of Tennessee, under :
(continued from page 36) ©
whether a municipality may be sued for equit- ,
able relief under § 1983 - simply is not
presented here." (41 L.W. at 28 n. 2.) :
Justice Douglas in his dissenting opinion
remarked, "There may be overtones in Monroe v.
Pape, that even suits in equity are barred
Tout} by et we never have so held." (41 L.W.
at 4636.
For an able exposition of the reasons
why the doctrine of equitable relief should
not be obtained under § 1983 against a state,
or its agency or subdivision, or an officer
in his official or representative capacity
(regardless of his personal involvement in
causing any deprivation of rights), see Harkless
v. Sweeny Independent School District (S.sD.Tex.
56842305 FoSunp 75%, 800-007 (albeit re-
versed by the Court of Appeals for the Fifth
Circuit in 427 F.2d 319). Also compare § 1983
with 42 USC § 1971 which provides concerning
a suit by the United States Attorney General
for preventive relief that "(co) «eo s
[w]henever, in a proceeding instituted under
this subsection any official of a State or.
subdivision thereof is alleged to have committed
any act or practice constituting a deprivation
of any right or privilege secured by subsection
(a) of this section, the act or practice shall
also be deemed that of the State and the State
may be joined as a party defendant and, if,
prior to the institution of such proceeding,
such official has resigned or has been relieved
of his office and no successor has assumed
such office, the proceeding may be instituted
against the State." <
ee cae | ;
“
RES LIT og
section 1983. Clearly the State of
Tennessee is not liable as a 'person'
within the meaning of this section ([cita-
tion omitted]), and because section 1983
imposes liability only upon a person who
‘subjects or causes to be subjected' any
other person to the deprivation of rights
secured by the Constitution, it is, briefly
stated, the individual's conduct which
forms the basis of liability. 'The Act
prescribes two elements * * * (1) the
conduct complained of must have been done
by some person acting under color of law;
and (2)-such conduct must have subjected
the complainant.to the deprivation of
rights. * * *' Bastista v. Weir, 340 F.2d
74, 79 (3d Cir. 1965) (Emphasis added) The
complaint sets forth no conduct by defendant
McCanless which could possibly be construed
as depriving plaintiff of any rights; it
merely appears that McCanless was made a
party defendant because a statute of
Tennessee was claimed to be unconstitu-
tional." (379 F.2d at 324.)
Even were this Court to expressly
determine that equitable relief can be obtained
in a civil rights action under § 1983 against a
state, or an agency or subdivision thereof, or
against a state officer sued in his representative
rather than individual, capacity, we respect-
fully submit that the argument set forth in
SEI, PELE IIE IM a) oo &
eee ee
PF TIS
-39-
This portion of our brief has value with
respect to discretionary judicial or quasi-
judicial acts of judges or prosecuting
attorneys relating to the administration of
criminal justice.
CONCLUSION
For the reasons set forth above, it is
respectfully urged that this Court disapprove
the novel doctrine announced by the court
below, reverse its judgment, and affirm the
judgment of the district court dismissing
respondents! amended complaint.
Respectfully submitted,
JOSEPH P. BUSCH, District Attorney
County of Los Angeles
18-709 Criminal Courts Building
210 West Temple Street
Los Angeles, California 90012
Attorney for Amicus Curiae
:
3
5
i.
Qf Counsel:
HARRY B. SONDHEIM
Acting Head, Appellate Division
ARNOLD T. GUMINSKI
Deputy District Attorney
Appellate Division
Office of the District Attorney
County of Los Angeles
849 South Broadway, llth Floor
Los Angeles, California 90014
Telephone: 213-624-2761
POOL BILLA EM RIF ELI AE BR CRE ROR CINE TY
r Ne de ek Rc
CE RS oT arr
bi hae RUN AT a ih
NN Pi ta rte Aba
DISTRIBUTION OF SENTENCE LEVELS BY TYPE OF ATTORNEY?
(In percent)
Sentence Level
Type of - T
Attorney | Felony | Misdemeanor | $17 PC
- Public Defender 44.0 | 52.2 | 3.8
Court-appointed |
attorney |; 49.4 | 47.2 | 3.4
Private attorney { 50.3 | 45.9 | 3.8
“sample of 2617 theft defendants in 1970
countywiée <elony defendant file.
APPENDIX A
RELATIONSHIP BETWEEN ETHNIC GROUP AND PATTERN
OF TREATMENT
Within our sampie, 48 percent of the defencants were Anglo-American, 40
percent black, and 12 percent Mexican-American. The blacks tended to have more
extensive prior criminal records than the Anglo-Americans, and. the Mexican-
Americans more extensive than the blacks. A slightly greater percentage of the
black and Mexican-American defendants were also minors as compared to Anglo-
Americans; 11.5 percent of Anglo-Americans were minors whereas 14.0 percent of
5
blacks and 14.9 percent of Mexican-Americans were minors.
Table 37 shows the acquittal rate of defendants in the three ethnic groups. The
black acquittal rate is considerably higher than that of the Anglo-Amevicazs and,
to a somewhat lesservextent, nigher than that of che Mexican-Americans. Table 38
shows that both blacks and Mexican-Americans tend w be convicted of the original
felony charged about 9 percent less frequently than Anglo-Americans. Table 39
shows that convicted blacks receive felony sentences roughly 5 percent less frequent-
ly than Anglo-Americans, and Mexican-Americans roughly 4 percerit less.
Tabie 37
ACQUITTAL RATE BY ETHNIC GROUP@
(In percent)
] }
| Acquitted ' Convicted
nace
'
Angio-American { 12.7 ; 87.3
Black ¢ 17.3 i 62.7
Mexican-American 13.5 6.5
a : - ae-
eae au ” “ete 7
HN hain? Rei Oo soe
PRMD
*
DISTRIBUTION OF COXVICTION LEVELS BY ETEXIC GROUP?
- * Cin percent)
4*
Conviction Leve~
' Felony Lesser |
Race | Charged | Felony | Misdemeanor
. 1
Anglo-American 67.0 | 24.4 | 8.7
Black 58.5 | 31.3 | 10.2
Mexican-American | 58.1 | 31.3 | 10.6 .
*sample of 2617 theft defendants in 1970
countywide felony defendant ‘file.
Table 39
DISTRIBUTION OF SENTENCE LEVELS BY ETHNIC GROUP*
(In percent)
—
Sentence Level
+
Race | Felony | Misdemeanor §17 PC
-
Anglo-American 48.6 | 47.7 ; 3.7
Black , 43.9 | 52.3 3.8
Mexican-American | 44.7 i 51.3 } 4.1
i
8sample of 2617 theft defendants in 1970
countywide felony defendant fiie.
Ultimately, efforts to explain these differences can be classified into two hypo-
heses: either (1) these data demonstrate that the jud cia! system applies a double
tandard to minority groups, or (2) more innocent mincri*y group members are being
rrested and charged with felonies than innocent Anglo-Americans. Arguments for
he first hypothesis are difficult to test with these data, since we have no way of
easuring rates of over-arrest except by resorting to the acquittal rates that were
he source of our hypotheses. In considering the possibility of over-arrest, however,
ne must remember that these data inc!ude only cases in which the District Attor-
ey’s screening has taken place and a Deputy District Attorney has decided a case
worthy of prosecution, and further, a Municipal Court judge has held the cefend-
nt to answer after a preliminary hearing to assess the merits of the case. Such
reening does not exclude the possibility of over-prosecution of certain groups; in
‘act, if the over-arrest phenomenon is pronourcec enoug... we could simply be
rving an inadequate cor-ect:on mechanism tat souls Oe rejecting anc Cismiss-
ing more cases for the ove--..:rested groups ghan for the generai population, put not
irequently enough to compensate fully.
Table 40,shows that most of the differences between the black acqu:tia: rave and
that of other ethnic groups is concentrated in three Branches: Los Angeies (Central),
Santa Monica, and Pomona. In the remaining five Branches, the differences are
small and not statistically significant. Table 40 also shows the ethnic distribution
of defendants tried in each of the eight Branches. .
We note that there is no similarity between ethnic compositions of the three
Branches in which we found acc uittal rates related to the defendant’s ethnic group.
Los Angeles has the county’s second largest minority population, Pomona has the
second smallest m:nority population, and Santa Monica is right at the median.
Santa Monica is the oniy Pranch in which the Mexican-American acquittal rate is
disproportionately high, ana it Aas =ne county’s second smallest Chicano population.
These facts at least sugyest iaat differences in acquittal rates by ethnic group
cannot be attributed to differences in either the group of defendants :ried in each
Branch or, by inference from the ethnic distribution of defendants, the ethnic com-
position of juries in these Branches. To some extent this tends to operate against the
double standard explanation.
These disparities are almost equally pronounced among the Public Defender’s
cients. The black dismissal rate for Public Defender clients is 17.5 percent higher
than we would expect, based on the average dismissa! rate for all of the Public
Defender’s cases. On the basis of present data, we cannot say whether this suggests
that blacks are more competently represented at trial by Public Defenders than are
Anglo-Americans and Mexican-Americans, or that representation of blacks at the
preliminary hearing by the Public Defender’s office is inferior. But dismissal rates
for blacks represented by court-appointed attorneys or private counsel are not differ-
ent from those for Anglo-Americans.
Although black dismissa. rates (5.7 percent) are slightly higher than those for
Angio-Americans (5.3 percent), the difference is not iarge enough to account for the
Table 40
BRANCH ACQUITTAL RATES BY ETHNIC GROUP@
(in percent)
Los cong Santa !
Race | angezes® [Beach | Monica? | Van Nuys , Torrance | Norwalk Pomona? | Pasadena
Acquittal Rates
ae.
7 | + ~—
Anglo-American | 15.9 120.5 ' 16.2 j; 9.2 13.7 | ? ld. 17.3
Siuck 19.9 ?. 32.4 11.8 25.8 8.9 22.38 15.7
Mexican-American 19.6 é. 25.5 6.8 23.7 6 22.5 17.5
i - a s i
s ricution of Defendun Tried
At.gio-American 35. 33.6 oO}. 7.2 ~~. S7?.. gh oe? $2.3
ca >3.0 oF A. 36.5 aacd Q:. 1..? 5 las 30.
“ax canwAmericarn | ...7 each e.4 | li.e —ea ij 28.2 J 16.3 rl 12.5
“sazpie © 20.7 thetr celesccics ia 1970 countwerce felony defendant file.
by
Statisi.ca.ly significas. (it eveaces.
IEE A Wee ALENT Ri Na ow eae
ces in acquittal rate. The most significant cause for the higher black acquit-
al rate can be found by iooring at guilty p.ca rates. Whiie 62.4 percent of the
Anglo-American defendants and 56.7 percent of \V.exican-American ‘defendarts
pleac cui ty, only 39.9 percent of blacks do so. If w> exclude all guilty pleas from
the sample and base acqui*ta: rate on this smaller group. we find a reversa/ in the
disparities; the black acquittal rate of 28.7 percent is /ower than either the Anglo-
American acquittal rate of 33.7 percent or the Mexican-American rate of 31.2 per-
cent. Of course, the salient question, which rem2ins unanswered, is whether the
lower rate of guilty pleas among black defendants reflects a distrust of the judicial
system independent of the defendants’ guilt, or a greater willingness to fight their
cases because of a higher proportion of unwarranted prosecutions. If we believe that
trials are accurate measures of true guilt, and if we further believe that no defend-
ant pleads guilty who is not guilty, then in fact, the higher black acquittal rate is
attributable to an over-prosecution of blacks. But it can also be argued that there
is a positive probability that any prosecution, regardless of its merits, will result in
an acquittal if contested; if this argument is true, then the higher black acquittal
rate would not necessarily support the over-arrest expianation.
It is also reasonable to ask whether blacks more frequentiy contest prosecutions
because they fare better at trials than Anglo-Americans or Mexican-Americans. An
examination of the conviction rates by SOT, court trial, and jury trial shows that
this is not the case. Blacks are convicted slightly more often than Anglo-Americans
in a contested disposition, but are more likely to have the charge reduced or to
receive a misdemeanor sentence.
In summary, there are moderate to small (but statistical'y significant’ dispari-
ties in the treatment of defendants by ethnic group in the courts. The apparent
greater frequency of acquittals for blacks over either Anglo-Americans or Mexican-
Americans is probably attributable to a lesser likelihood that black defendants wi!)
plead guilty; 39.9 percent of blacks but 62.4 percent of Angio-American.defendants
plead guilty. Both blacks and Mexican-Americans tend to be convicted of the orig:-
nal felony charged (robbery or burglary) about 9 percent ‘ess frequently than Anglo-
Americans. Convicted blacks receive felony sentences rough'y 5 percent iess fre-
quently than Anglo-Americans, and Mexican-Americans rcugh!y 4 percent less. In
contested dispositions, blacks are convicted slightly more o‘ten than Anglo-Ameri-
cahs, but are more likely to be convicted of a lesser charge and to receive a mis-
demeanor sentence. The most provocative question ‘eft unresolved is whether these
disparities can be attributed to over-prosecution. The question of over-arres* is
simply not amenable to analysis solely by use of the data at our disposal.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.