Introduction The Role of Federal Courts: Main Outline

Main Outline
Saturday, December 03, 2011 4:33 PM
The Final Exam We will have more flexibility than what she gave on the last exam. You only have to answer one question on the finala choice between two questions. On either question, youre going to have to dig into at least three of the five areas we studied (Congressional Control, Justiciability, 11th Amendment, Sec. 1983, BivensImplied ROA) This will entail writing directly about six cases (two per area), but be sure to reference other cases in your analysis to po int out trends, etc. and make a really good argument. And its better to have a singular theme in mind as you answer the question you choose, one that allows you to show your OPINION. For the targeted question, you can focus on only one of the essential functions (SOP, Federalism, or Individual Rights). For the second (more comprehensive) question, you can focus on a combination of the essential functions (SOP, Federalism, Individual Rights). What Rush is looking for: 1) Knowledgesalient facts and significance of cases Note: Use short form for cases, e.g., Marathon 2) Organization Dont need to have headings, but they can help a lot. Really helpful to work from an outline. Describe what the Court (or dissent or concurrence) held Analysiscritical and deeppick good adjectives and be VERY opinionated Juxtapose different cases from different areas we studied to make your point with a punch Creativity and Confidence Exam Question Fodder If I were plaintiffs counsel and wanted to beat the defenses summary judgment motion based on qualified immunity, what would I allege? Knew or should have known, or malicious How does this standard allow the federal courts to perform their essential function of protecting individual liberties? What does the modern Court do to change this standard (see Anderson v. Creightondecided in the late 1980s)? Is this change consistent with changes the modern Court has made in other areas? Eleventh Amendment / state sovereign immunity: The modern Court, and federal courts in general, are making it harder to litigate in federal court. So is the Court in the area of qualified immunity under 1983! Valuing essential function of safeguarding federalism, SOP, etc. over individual liberties. This is consistent! Justiciability: The modern Court has made the Article III circle narrower (favoring a limited role of the judiciary because of SOP and federalism principles), and this is entirely consistent with the modern Court taking a more restrained approach to its authority under 1983 by making changes to qualified immunity doctrine! Courts not as competent to judge the subjective good faith belief of defendants and wants to protect executive discretion because of essential function of SOP! Person under 1983: The modern Court has made it difficult to sue local governments. Totally consistent with its recent developments in qualified immunity doctrine! Valuing other checks in our system aside from the Court itself: SOP, federalism, the political process, etc. Wants to take a limited role vis a vis other institutions. Not willing to embrace a judicial supremacy interpretation of Marbury (and the individual liberties, uniformity, and supremacy values that interpretation serves) at the expense of SOP, federalism, etc. 10 pages, 12 pages max Quotations arent that helpfulparaphrasing will suffice to make your point. Make connectionsfind things that go together, especially where the connection may not be that obvious. Rush is pairing the cases and has a certain connection in mindeach pair is together for a purpose. I f you dont get the connection at all, pick a different pair! My spin: Start with a thesis (e.g., The modern Court is doing an excellent job protecting SOP, but it needs to do a better job protec ting individual rights). Then use the rest of the exam to back up your thesis with examples. Can upload several drafts to TWENthe final draft will be the one that gets graded.
I.
Introduction; The Role of Federal Courts

Federal Courts Page 1
Courts
A. Introductory Questions i. If you have a choice to file a case in federal court or state court, which would you choose and why? ii. If you could be a federal judge or a state judge, which would you be and why? 1) Federal judges have life tenure, are perceived to be more prestigious and smart, etc. iii. Could Congress pass a law that requires federal judges to retire at 60? 1) That allows federal judges to be censored? 2) That erases diversity jurisdiction? B. Hypo: During winter night in Montana, state police ask a drunk patron of a bar to step outside, and they take his keys away a nd leave. He freezes to death. Does an action in negligence lie here? An action for illegal search and seizure / a constitutional or civil rights violation? Would you go to state court or federal court? i. Federal court! Youre suing a state agent and dont want to be in federal court? 1) Erie tells us the law applied will likely be the same in federal court as in state court UNLESS there is a federal statute. ii. And here there is42 U.S.C. 1983. iii. But an action for violation of constitutional rights doesnt have to be brought in federal courtcan still be brought in state court. C. Is there a qualitative difference between a federal court and a state court? i. Our federal system operates on this assumption! D. Marbury v. Madison i. Basically, Article III sets a ceiling with respect to SCOTUS original jurisdictionCongress cannot increase by statute. Open question = whether Congress can decrease by statute (like it does with the amount in controversy requirement for diversity jurisdiction). ii. 1331 = Congressional statute regulating federal question jurisdiction iii. 1332 = Congressional statute regulating diversity jurisdiction iv. Federal courts = limited jurisdiction courts, while state courts = general jurisdiction courts. Federal courts can NOT hear a case over which they have no jurisdiction, and if lack of jurisdiction is ever discovered, case is thrown out. In state courts, h owever, jurisdiction is presumed. v. Marbury here brought the case for his mandamus directly in SCOTUS pursuant to the 1789 Act. J. Marshall holds 1789 Act unconstitutional because doing otherwise would make Article III form without substance. vi. But the men who drafted the 1789 Act were the same ones who drafted Article IIIseems to suggest Marshalls opinion isnt an originalist one.
II.
Congressional Power to Limit Federal Court Jurisdiction
A. What authority does Congress have to regulate the jurisdiction of the federal courts? i. Remember that 1331 and 1332 (federal question and diversity jurisdiction) = concurrent jurisdictionso we know that federal question and diversity cases dont have to be heard in federal court. ii. We know from Marbury that Congress cannot expand the jurisdiction of the federal courts. But to what extent can Congress narrow it? B. Lower Federal Courts 1) Article III Courts a) Three Characteristics i) Performs court-like functions only (adjud. Cases, does not render advisory opinions or promulgate rules of general application) ii) SCt has power to review "inferior" Ct decisions iii) Exercise power within one of the subject areas listed in Art. III, 2 b) Framers envisioned that when Congress created "inferior courts" pursuant to Art. III, it would also ensure that judges would enjoy life tenure and salary protection. i) Art. III, 1 vests the "judicial Power of the United States" in the SCt and "in such inferior Courts as the Congress may from time to time ordain and establish." ii) Art. III, 2 - those who staff federal courts shall hold their jobs during "good Behavior" and will receive compensation that will not be diminished "during their Continuance in office c) Debate i) The debate over Congress' power centers on its prerogative to limit lower federal court jd rather than expand it. ii) The Constitution's grant to Congress of discretion on whether to create any lower federal courts informs the extent to which Congress may limit the jd of the courts that it does choose to create. iii) Congress must be mindful of not only Art. III limitation, but also of constitutional restrictions outside of Art. III, such as due process and separation of powers concerns. 2) Jurisdiction Stripping Legislation a) Article III Limitations i) Must Congress create any inferior Art. III tribunals at all?
i) Must Congress create any inferior Art. III tribunals at all? A. Article III: The judicial power shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. B. Looks like there does have to be a Supreme Court, but the may suggests lower courts dont have to be established at all. 1. Yes? Congress cannot refuse to create Art. III courts (Martin v. Hunter's Lessee) 2. Some commentators agree - others find it inconsistent with the framers' debates -- which accepted possibility that Congress could have declined to create lower federal courts. ii) How many of those judicial powers in Art. III, 2 must Congress grant to these Courts? 1. Congress enjoys the prerogative of allowing lower fed courts to hear only some of the cases and controversies in Art. III. 2. Sheldon v. Sill i. SCt reasoned that the greater power to create lower courts includes the lesser power to control what the courts do. ii. "Congress, having the power to establish the lower courts, may withhold from any court of its creation jd of any of the enumerated controversies." 3. Congress has consistently used discretion recognized in Sheldon ; SCt has followed Sheldon rule in many contexts; yet debate still rages on most controversial question: iii) Whether Congress may exclude specific constitutional subject areas from lower federal court power: 1. Sheldon - concerned whether Congress could take away from lower courts diversity of citizenship jd i. Kline also a diversity case 2. At least three other cases appear outside diversity context iv) Constitution allows Congress some discretion to take away remedial powers of lower courts, but that is different from limits on Congress' ability to take away all lower court power over a particular subject area. v) ** Legislation that eliminates an entire category of federal constitutional rights from lower court power (e.g. ban on abortion cases) 1. Clashes with spirit, if not letter, of Art. III - lower federal courts might exist in order to enforce the guarantees of the US Constitution. 2. Impedes on power of judicial review - intent to reduce effectiveness of a line of SCt cases; Congress threatens important constitutional power implicit in Art. III. 3. Statute that Precludes "All" Federal Courts from Adjudicating Challenges to Abortion Laws i. Original Jurisdiction 1. To the extent that statute takes away power to adjudicate matters with SCt's original jd, statute is unconstitutional. 1. SCt has repeatedly said that Congress cannot restrict SCt's original jd 2. Extends to cases in which a state is a party; one can certainly imagine an instance where a state clashes with another litigant over validity of state's abortion regulation ii. Appellate Jd 1. Constitutional fate is uncertain: 2. May argue that statute is clearly Const. Under Art. III: 1. Cong. Possesses both power to limit SCt's app jd under Art. III's excepctions clause and to restrict lower federal court jd pursuant to its Art. III discretion to decide whether to create lower federal courts at all. 2. Or, statute is problematic under Art. III bc it eliminates a slice of "arising under" jd from federal judicial power: cases concerning abortion rights 1. Statute undercuts promise of Art. III, 2 that federal judicial power shall extend to "all Cases...arising under this Constitution" 2. Congress clearly meant to strip federal jd here out of hostility to federal court case law extending protection for abortion rights. Such an intent could unconstitutionally impair the judicial review power implicit in Art. III. b) Due Process Limitations i) Significant Const. limit on Congress' ability to strip lower federal court power appears in Fifth Amendment's due process clause ii) Scope of DP protections subject to great uncertainty 1. SCt case law establishes that litigants enjoy a due process right to have an impartial tribunal adjudicate constitutional claims, but case law does not establish the impartial tribunal must be an Art. III lower federal court. 2. Thus, as long as state courts are available, a litigant's DP rights are likely satisfied iii) Significant DP problems emerge if state courts also lack power to adjudicate the subject matter or issue a meaningful remedy. iv) Webster v. Doe - when state court review is effectively unavailable, challenger has strong due process claim that she was deprived of her right to have forum for adjudicating her Constitutional claim. v) Reno - Court refused to find that Congress intended to preclude judicial review of decisions regarding illegal immigrants 1. Noting presumption in favor of interpreting statutes to allow judicial review, Ct stated that it would "find an intent to preclude such a review only if presented with 'clear and convincing evidence'. vi) SCt vigorously applies presumption against jurisdictional preclusion.
vi) SCt vigorously applies presumption against jurisdictional preclusion. 1. Sometimes articulated as "clear statement" requirement, emphasizing burden on Congress of making intent to preclude jurisdiction unambiguous c) Habeas Corpus i) Specific Constitutional context in which SCt evaluated Congress' jurisdiction-stripping powers ii) Boumediene - SCt found significant limitations on Congress' ability to strip lower courts of jd to issue a writ of habeas corpus 1. Precise lesson difficult to discern because Ct's opinion focuses mostly on suspension clause of Const. - which precludes Congress from suspending habeas corpus remedy except in cases of rebellion or invasion. 2. Provides potentially significant guidance for determining the scope of Congress' general powers to control federal court jurisdiction 3. Arose from tug-of-war among GWB admin, Congress, and SCt over appropriate legal response to Sept. 11 attacks. Guantanamo detainees challenged detention w/ writs of habeas corpus filed in federal court. 4. Contrary to Bush, SCt held in 2004 that noncitizens had statutory right to pursue federal habeas remedy under general habeas statute. 5. Congress made clear in Acts that no "court, justice or judge" possessed habeas corpus jd over noncitizens detained as enemy combatants at Guantanamo. SCt responded in Boumediene, holding this provision unconstitutionally suspended federal habeas corpus remedy. 6. SCt made number of broad-reaching statements in course of its ruling: i. Habeas corpus provided a crucial mechanism for enforcing federal constitutional guarantees, including protections accorded by the separation of powers within the federal government ii. Congress and the president do not have "the power to switch the Constitution on and off" iii. Tied SCt power to notion of judicial review itself a la Marbury, emphasizing that it is the Court (not the Congress or the president) that may determine the substance and meaning of the US Constitution. iii) Conclusion: The scope of a constitutional provision "must not be subject to manipulation by those whose power it is designed to restrain." 1. Restrictions are important harnesses on congressional power over lower courts. 3) Separation of Power Challenges to Congress' Control of Manner, Substance and Result of Judicial Decision -making a) Review of Federal Court Decisions i) Court has asserted itself more vigorously in protecting manner, substance and results of federal court adjudication ii) Hayburn - Congress cannot vest in executive branch officials the power to review the decisions of Art. III Courts. b) Mandating the Substance of Judicial Decisions i) Klein - SOP restriction - Congress cannot tell a court what result it must achieve in a particular case. 1. Keys to distinguishing between proper and improper regulation are timing and specificity. 2. Congress may pass general rules that influence the results of a court's adjudication 3. However, Congress may not interfere with a court's decision in a specific case while the court is adjudicating, unless it changes the law generally. 4. Nor can Congress interfere with a court's decision after the decision has become final. 5. Facts: 4) EXAM NOTES: What authority does Congress have to regulate the jurisdiction of the lower federal courts? 1) Unlimited discretion because Congress doesnt even have to create them in the first place! (Sheldon could support this view.) i) Acknowledged Congress ability to prevent plaintiffs from colluding to get diversity jurisdiction. The plaintiff really wanted to be in federal court and assigned his interest to someone from a different state to generate diversity jurisdiction. But Congress had a statute that said people cant assign their interest in a case to someone from a different state solely for the purpose of creating diversity. ii) Courts created by statute can have no jurisdiction but that which the statute confers. iii) Seems to support the view that Congress has absolute control over the jurisdiction of the lower federal courts! iv) And think of the amount in controversy requirementCongress can do that, too. v) But could Congress erase diversity jurisdiction, or raise the amount in controversy requirement to $1 billion? 1. This sentence from Sheldon might suggest as much, but that seems a rather simplistic view of Sheldons dicta. vi) If you want to advocate a different view, you have to distinguish Sheldon and deal with its dicta. 1. If confronted with the Q of whether Congress could get rid of federal question jurisdiction, say that the basis for Sheldon was diversity jurisdiction and that even though Congress can narrow federal diversity jurisdiction, federal question jurisdiction is so much more important. 2. Plus, Sheldon does NOT stand for the proposition that Congress can completely control the scope of the federal judiciarys diversity jurisdictiononly that it could narrow it in the particular way it chose to in that case. vii) The federal judiciary didnt even have federal question jurisdiction until 1875this type of jurisdiction has especially large federalism implications. 1. If Congress erased the federal question jurisdiction (1331) of the lower federal courts, it would be trusting the states to decide those questions (leaving the possibility of ultimate review by SCOTUS) and expressing the view that there is no qualitative difference between federal judges and state judges. 2. But that would raise the problem of what if the states dont want to hear them. viii) Obviously Congress cant make states hear federal question cases (10 th Amendment commandeering issues), and obviously it can allow them to (concurrent jurisdiction), but what if Congress made 1331 federal question cases exclusively federal (i.e., states cant hear federal question cases)? 1. What if Congress said that states cant participate in the interpretation of the federal Constitution?
1. What if Congress said that states cant participate in the interpretation of the federal Constitution? 2) No discretion Congress can choose to create or not create them, but once created, Congress has no authority to regulate their jurisdiction. i) Historically, the lower federal courts have never enjoyed full Article III jurisdiction. ii) Not until 1875 did Congress authorize the lower federal courts to hear federal question jurisdiction! iii) There is a long history of limiting the lower federal courts Article III jurisdiction. iv) Plus, it seems awkward to say Congress cant have any power to regulate their jurisdiction if it enjoys absolute discretion in deciding whether or not to create them in the first place. 3) Some discretion - There have to be some lower federal courts, notwithstanding the discretionary language in Article III therefore Congress does not have absolute discretion over the jurisdiction of the lower federal courts. But it does have some discretion, especially for cases that normatively speaking it isnt important for them to be in federal court. i) Article III: The judicial power shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Could argue that may means shall, notwithstanding their juxtaposition. ii) There are some cases that SCOTUS cant hear on original jurisdiction that normatively speaking dont belong in state court: Marburys mandamus, federal habeas corpus petitions, etc.not proper for them to be heard in state court, therefore Congress is obliged to create lower federal courts! iii) State judges are ill-suited to decide some types of federal questions. 1. Shouldnt be telling the President what to do (i.e., Marburys mandamus) or deciding whether the state court judgesthemselvesviolated a habeas petitioners federal rights. 2. Because SCOTUS doesnt have original jurisdiction over these claims, there must be lower federal courts to hear them. 3. Congress must provide for at least some lower federal court jurisdiction. 4. There are certain constitutional values that are protected by allowing federal courts, and not just state courts, to hear these types of cases. 4) Unlimited discretion within Constitution: Congress can do anything to regulate the jurisdiction of the lower federal courts as long as it doesnt violate the Constitution in doing so. i) This is where Webster comes in. 1. Plaintiff alleged that the CIA fired him because he was gay. But there was a federal statute giving the director of the CIA absolute discretion in hiring and firing. This is one of those cases that dont belong in state court dont want state judges telling part of the federal executive branch what to do. 2. The Court here says theres a difference between statutory claims and constitutional claims. With respect to statutory claims, the Court unanimously says Congress can completely preclude review of statutory claims. 3. But when it comes to constitutional claims, Congress does not have the power to completely preclude jurisdiction. 4. But SCOTUS can avoid altogether the difficult constitutional questions that the latter situation would raise by saying that the statute does not express a clear Congressional intent to preclude review of constitutional claims. 5) Unlimited Discretion as long as Essential Functions not Disturbed: Congress can regulate the jurisdiction of the USSC as long as it doesnt disturb the Courts essential functions. Cite McCardle for this view. i) McCardle doesnt stand for the proposition that Congresss power over the Court is unlimited because of the end of the opinion: The Act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised. 5) Big Questions 1) Is the Constitution self-executing? i) Without 28 U.S.C. 1331, could I still sue for a Free Speech case? ii) We know that 1331 doesnt change my right to Free Speech into a statutory right, but what if there were no 1331? iii) How about suits for statutory rightscan Congress preclude Article III federal court review completely for such claims as long as it provides another forum to satisfy Due Process (e.g., an Article I courtmagistrate judge, administrative agency, etc.). 2) How do the Article III, Article I, and state courts all relate to each other? i) Congress can NOT increase the jurisdiction of the federal courts. ii) Open question, however, whether Congress can decrease it. 1. Also, can Congress get rid of federal courts altogether (wouldnt that destroy federalism)? 2. If Congress cant get rid of them but can decrease their jurisdiction, we run into a line-drawing problem. i. What percentage of Article IIIs full jurisdiction can Congress take away without violating the Constitution? 10%? 50%? 3. Could Congress make it so civil rights cases can ONLY be brought in federal court? 4. Do people need a statute to bring constitutional claims in court (e.g., 1983)? i. Or is there already implied federal jurisdiction to hear such claims? 3) Where are the pressure points / what are the constitutional values at risk when: 1. State supreme court upholds a state law under federal Constitution i. SCOTUS will still want to hear it if the state court got it wrongthe supremacy of federal law is at stake here if the state court got it wrong 2. State supreme court strikes down a state law under federal Constitution i. SCOTUS probably wouldnt care very muchno conflict with the federal Constitution (no supremacy issue) even if the state court got it wrong, and no federalism balance issue because still hasnt changed federal constitutional rights
4) 5) 6)
7)
federal constitutional rights 3. State supreme court upholds federal law under federal Constitution i. SCOTUS wont care if it thinks the law is constitutional (no supremacy issue) and even perhaps if it thinks the law unconstitutional; harmony seems to result 4. State supreme court strikes down federal law under federal Constitution i. SCOTUS will definitely want to takethe supremacy of federal law is at stake here if the state court got it wrong 5. Lower federal court upholds state law under federal Constitution i. SCOTUS will only want to hear if it thinks lower federal court got it wrong or there is a circuit split (supremacy or uniformity concerns, respectively) 6. Lower federal court strikes down state law under federal Constitution i. SCOTUS may definitely want to takefederalism is at stake here 7. Lower federal court upholds federal law under federal Constitution i. SCOTUS will only want to take if it thinks federal court got it wrong (supremacy of the Constitution over federal statutes at risk) 8. Lower federal court strikes down federal law under federal Constitution i. SCOTUS will be very interested, especially if theres a circuit splitwhen theres a circuit split, the constitutional value of uniformity is threatened How important is it for federal judges to have life tenure and a guarantee against salary decrease? What are federal courts supposed to be doing? Who is really the ultimate arbiter of the federal Constitution? i) We know from Marbury that it is emphatically the province and duty of the [judiciary] to say what the law is. But the spheres of expertise model say that perhaps each branch should be the ultimate article of its own Article. ii) Marbury could fit right into the spheres of expertise model because it dealt with an Article III question. iii) But it could also stand for the SCOTUS is the ultimate arbiter model. The modern Court, beginning with the Rehnquist Court, is relying more and more on the spheres of expertise model. So its very important that we not take that sentence from Marbury in a linear way. i) Of course the Court will recite that sentence when asserting its right to expound the Constitution, but it can obviously mean different things in light of the modern Courts hands off approach. ii) When the court has a hands-off approach, its letting other institutions help tell us what the Constitution means.
III.
1. Key Characteristics a. Art. 1, 8, cl. 9 - empowers Congress to "constitute Tribunals inferior to the supreme Court." b. Federal territorial courts, bankruptcy courts, magistrate courts, etc. c. Judges do not enjoy Art. III salary protection or life tenure d. Accepted wisdom: Art. I's reference to "Tribunals" is simply repetition of Congress' Art. III power to create lower federal courts with specific qualities and limitations listed in Art. III. e. No definitive Const. language to support Art. I cts - principles governing Constitutionality of Art. I courts is murky, but there are various discrete categories of Art. I courts. 2. Types a. Administrative Agencies i. Agencies do not enforce judgments, and parties must instead file enforcement suits in an Art. III court; ii. Agencies may use adjudication as means to develop policy (thereby blurring adjudication and rulemaking functions) iii. Agencies are often justified under rubric of Art. III (rather than as exception to Art. III) because full judicial review of administrative action is available in Art. III Courts. b. Other Non-Art. III Courts i. "Adjunct" Court (Raddatz) e.g. US Magistrate Courts 1) SCt, in upholding Constitutionality, has observed that such courts are subject to the control and supervision of district courts, which retain (i.e. do not delegate to adjunct courts) "essential attributes of judicial power," such as executing judgments and performing de novo review of adjunct court decisions Geographic Courts (e.g. D. C. , federal territorial courts) 2) Clearly can create them under Article IV, but NOT clear how much authority they can give those courts after creating them. Do their decisions always have to be reviewable by Article III courts? Must Congress give them life tenure and no reduction in salary? Apparently not because of longstanding practice. Why not? 3) After the territorial courts, the barn door was open and the horse was cut loose. The challenge = keeping the horse fenced in. What are the boundaries? 4) But everyone accepts the constitutionality of these courts. 5) Does this institution threaten any constitutional values? If so, what boundaries do we need to protect them? When can Congress create these? How much power can it give them? Why doesnt Congress have to give them life tenure without reduction in salary? a) Mandatory review by Article III courts would be a great place to start!
Congressional Power to Create Non-Article III Courts
a) Mandatory review by Article III courts would be a great place to start! ii. "Public Rights" Courts - Adjudicate civil disputes between private citizens of the US iii. Military Courts 1) Includes military commissions and courts-martial, which have existed since early American history but have become especially controversial in area of global terrorism 2) Sometimes created by Executive and in that case might be better described as "Art. II" Courts 3. Constitutional Concerns with Legislative Courts: Judicial Independence and Separation of Powers a. Is Congress attempting an "end run" around Art. III's strictures? i. Adjunct courts - lessened in this context; render decisions subject to Art. III court's supervision (Art. III ct eliminates independence concern and acts as a check on Congressional power.) b. Generally - SCt has found that legislative courts do not adequately preserve these Constitutional values. i. (Marathon Pipe Line Co. - ) Supreme Court ruled that bankruptcy courts, created in Congress's 1978 bankruptcy reform, were unconstitutional. 1) Brennan for plurality: a) Emphasized that, as constituted in 78 legislation, were not adjunct courts, since had jd over all civil matters arising in or related to bankruptcy cases and could enforce their own orders, which were subject to review in Art. III district court only under deferential "clearly erroneous" standard. b) Moreover, bankruptcy cts did not fall within 3 exceptions for legislative courts: (1) territorial courts; (2) military courts; (3) public rights courts. c) Not "public rights" courts, since bankruptcy court jd extended beyond public rights into all civil matters, including state law disputes between private parties. d) Not so inclined to sever clearly unconstitutional part of bankruptcy court's powers (adjudication of private state law cause of action) from the remainder of the bankruptcy court's authority to implement federal bankruptcy law 1. For that reason, plurality rule BCs unconstitional as an entity rather than merely disqualifying them from adjudicating private, state law causes of action. e) Private nature of claim in Marathon was also key to SCt's decision 2) Rehnquist and O'Connor's Concurrence a) Emphasized Separation of Powers concern - Constitution prevented Congress from granting bankruptcy courts power to adjudicate state law disputes that are only indirectly related to the adjudication of federal bankruptcy issues. b) State law nature problematic - concern with state law nature appears tied to federalism values 1. One might argue, for example, that the bankruptcy courts threaten state sovereignty, which should prevent a federal institution from intruding on the state prerogative of adjudicating a state-created right 2. Yet constitutional values that motivate restrictions on legislative courts tend to serve separation of powers among the branches of the federal government, not relations between state and federal govts. c) One possible explanation: Framers - Assumptions under which states ratified the Constitution. 1. Constitution creates federal govt that possesses limited powers, with the states retaining the balance of power. 2. To extent that states gave up some power under Constitution's scheme, the power they lost should be specified in the Constitution i. Admittedly, Constitution provides that federal government may hear cases and controversies for which state law might provide the rule of decision, such as disputes between citizens of different states (diversity suits) ii. But states ceded that control over state law adjudication only in the Art. III context, where judges enjoy special protections. 3. States did not cede power over state law adjudication in circumstances where the courts do not protect Art. III protections. 4. To allow a non-Art. III adjudicator to exercise this power thus violates the deal the states made when they ratified the Constitution. d) Marathon: When does Article III review constitutionalize the use of non-Article III judges? 1. Sub-issues: i. What standard of review is required? ii. Is consent of the parties required? 2. Marathon asked the constitutionality of bankruptcy courts (non-Article III courts) under Article III. 3. Key Facts: i. When Congress created these courts, it called them referees. Couldnt automatically handle pending claimsdistinguished between summary and plenary jurisdiction. Parties had to consent for one of those types. ii. But under the new statute, parties consent no longer required. Essentially gave the bankruptcy courts arising under jurisdiction. iii. One party tried to bring a non-bankruptcy counter-claim (breach of contract) against the other in bankruptcy court. The other party said that the bankruptcy court didnt have the power to hear the nonbankruptcy claim. Congress tried to give it power by a jurisdiction-conferring statute, but the statute violates Article III. Cannot delegate that much authority to a non-Article III court. iv. This is where the USSC finally stops the horse from galloping away. Its the diverse state law breach of contract action that the Court has a problem with. v. The plurality says everything up until this point has been constitutional vi. OConnor and Rehnquist werent even willing to join the others in saying everything else is constitutional.
vi. OConnor and Rehnquist werent even willing to join the others in saying everything else is constitutional. Only willing to say that this present case presented an Article III violation. vii. The dissent is operating on an assumption on the hierarchy of these judges and thinks everything has been constitutional, including the present case, because the non-Article III decisions are reviewable by Article III courts. 1. Assumes that there is a qualitative difference between the three types of judges: Article III is highest quality, Article I is next, and state judges are the least competent. 2. Says Article I judges are better than state judges, so whats the big deal of having better judges decide state law claims? viii. Thus, a majority agreed this case presented an Article III violation, but disagreed over whether nonArticle III courts up until this point have been constitutional. 4. Analysis i. Bottom line in Marathon: The line is drawn at bankruptcy courts hearing non-bankruptcy issues. Article I judges do NOT have power to hear state law (diversity) claims. Only Article III judges can do that! ii. Here, USSC takes the least important type of case (diversity) and protects it from one federal judge, only to give it to another: wants to protect diversity from Article I courts and keep them in Article III courts 1. Despite the fact that Congress can limit (and possibly even eliminate) diversity jurisdiction (see amt. in controversy)!!!! 2. Stands dramatically for the proposition that there is a qualitative different between Article I and Article III judges. Only Article III judges are required to have lifetime tenure without reduction in salarytheres something special about that. J iii. Values the court wants to protect: 1. Federalism: Protected because diverse state law claims can only be decided in federal court 2. Separation of powers iv. A Rules of Decision Act (ver. 2.0) for Article I courts is what the USSC is afraid of here! 1. RDA: We know that in diversity suit in federal court, theres no such thing as general federal common law. Federal courts can apply procedural federal rules, but they must apply substantive state law. The Article III judge sits substantively like a state judge. 2. We dont trust them to do thattheres a qualitative difference between Article I and Article III judges. That lifetime tenure without reduction in salary makes a big difference. 3. The BIG factor here: Congress controls the jurisdiction of the Article I courtsworried about judicial independence! Congress cant control the jurisdiction of Article III or state courts! v. Marathon: Diverse state law claims can only be heard by: 1. State courts (score a point for federalism); OR 2. Article III courts (score a point for federalism and SOP) 3. Can NOT be heard by Article I (political, non-independent) courts!!! Want to protect federalism and SOP here!!! vi. Takes a claim we thought was least important and makes it very important. Its the diverse state law claims that stop this horse. 5. Whats the value of Article I judges? i. They can specialize and develop expertise, something that Article III judges cant do. ii. They might develop an expertise in bankruptcy, for example, and the district court judge will be very thankful he doesnt have to deal with such complicated issues. iii. In theory, decisions from a specialized court will actually be more just. 6. Could Congress establish a First Amendment Court? Even with Article III judges??? i. Might serve the specialization value, but many reasons not to do this. ii. What about if Congress designated one Supreme Court justice to be the First Amendment justice? c. Post-Marathon Developments in Legislative Courts i. SCt replaced Marathon's formal approach with more functional balancing approach. ii. Thomas: 1) This case proves that it is INCORRECT to think that the USSC in Marathon said this far and no farther. 2) Congress essentially tells private litigants with private disputes that they must submit to binding arbitration on supplemental state law claims! 3) An agricultural act required pesticide developers to, after 10 years, allow competitors to use their data. But it said they were entitled to compensation for such use, and required binding arbitration for those claims. 4) We think, perhaps, that Marathon has to stop this continuumthis seems even worse than Marathon!!! 5) But the USSC said this was ok for Congress to do and did not violate Article III. a) The right to compensation arose out of federal law, not state law. b) Congress had power to do this because, although arguably a private right claim, it was part of a larger federal regulatory scheme and thus had many of the characteristics of a public right claim. c) Looks more like federal question jurisdiction. d) To have supplemental jurisdiction over state law claims, would need to arise out of the same transaction or occurrence. iii. Schor - SCt determined that non-Art. III court's adjudication of a state law cause of action between private parties was not unconstitutional; 1) Adjudicative body involved possessed power to adjudicate claims brought against regulated entities for reparations owed
1) Adjudicative body involved possessed power to adjudicate claims brought against regulated entities for reparations owed as a result of Commodity Exchange Act, prohibiting fraudulent and manipulative futures transactions. 2) CEA also granted CFTC adjudicative authority over state common law counterclaims that a regulated entity might raise in the same proceeding. 3) In evaluating whether scheme violated Separation of Powers principles, Schor court spurned "formalistic and unbending rules" in favor of a functional, multi-factor analysis, identifying factors to consider in evaluating whether non-Art. III court unconstitutionally invades the province of Art. III judiciary a) "the extent to which the 'essential attributes of judicial power' are reserved for the Art. III Courts" b) "the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Art. III courts" c) "the origins and importance of right to be adjudicated, and" d) "the concerns that drove Congress to depart from the requirements of Art. III . 4) Applying above factors, Schor court found CFTC scheme left far more of the elements of judicial power to Art. III judiciary than did the bankruptcy scheme at issue in Marathon. a) In particular, Ct noted that CFTC adjudicated only a narrow area of the law, that CFTC could not enforce its own orders, and that the district court reviewed CFTC factual rulings under the "weight of the evidence" standard of review and legal rulings using the "de novo" standard of review. b) Counterclaims that CFTC could adjudicate militated against finding scheme constitutional because counterclaims possessed two problematic qualities: (1) concerned private rights between private parties (rather than public rights) and (2) state law provided the rule of decision for resolving the. c) Ct characterized these claims as de minimis given scope of power maintained in the district courts as well as efficiency that resulted from allowing FCTC to adjudicate the counterclaims together with claims that regulated entity violated the CEA. d) Indeed, for each dispute, CEA claim fit hand in glove with the counterclaim. e) To prevent CFTC from adjudicating that counterclaim would "defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert and inexpensive method for dealing with questions of fact." suited for adjudication by a specialized entity. 5) Contrast between Marathon and Schor classic illustration of Formalism v. Functionalism in Separation of Powers a) Marathon plurality reached unwavering conclusion that bankruptcy courts were unconstitutional upon observing that -- as non-adjuncts--they adjudicated a forbidden type of controversy: state common law claims between private parties. b) Schor, however, did not automatically invalidate CFTC on that basis but was willing to consider countervailing factors, such as efficiency and the magnitude of intrusion on Art. III prerogatives. d. Military Tribunals i. Congress invoked its Article I, Section 8 power to raise and support Armies as authority to create these courts. But what are the boundaries? Military judges can sentence people to death!!! But military judges have a bossmilitary hierarchy of commanders, ending with the President. ii. Everyone accepts the constitutionality of these courts. iii. Does this institution threaten any constitutional values? If so, what boundaries do we need to protect them? When can Congress create these? How much power can it give them? Why doesnt Congress have to give them life tenure without reduction in salary? 1) Mandatory review by Article III courts would be a great place to start iv. Determining Legitimacy of Military Tribunals 1) Legitimacy questions focus on separation of powers among branches of federal government 2) Clash concerns scope of president's power; issues regularly include President (Constitution grants commander -in-chief authority, )and Congress (Constitution gives power to make rules for regulation of land and naval forces). 3) Federal judiciary also drawn : legitimacy often hinges on whether Ar. III courts - as opposed to non Art. III military tribunals, are the most appropriate forum to exercise adjudicative power over military members and enemies of the United States. a) Legitimacy of using military tribunals for non-US-service members requires fact-sensitive analysis: v. ScCt in 3 recent terrorism cases has established unqualified principles about overreaching presidential power. 1) Hamdi - Ruling that Congress had granted general authorization to the president to detain enemy combatants after Sept. 11, Ct. invalidated president's detention scheme as failing to provide detainees with notice and opportunity to be heard sufficient to satisfy Due Process standards. a) Plurality: "A state of war is not blank check for the President when it comes to the rights of the American citizen." b) Significant in non-Art. III. Context because it required creating a federal adjudicative entity to provide due process to detainees of the War on Terrorism. 2) Hamdan - Despite presidential assertion that terrorist threat justified unilateral assertion of inherent presidential power to create tribunals of the president's own design; Hamdan held that president must work win a framework of rules already provided by Congress. a) "Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated by Art. I S 8 and Art. III S 1, of the Constitution unless some other part of that document authorizes a response to a felt need. b) And that authority, if it exists, can derive only from the powers granted jointly to Congress and the President in time of war. c) Following Hamdan, Bush sought auth from Congress to reconstitute military commissions --> Military Commissions Act of 2006 i) Embodies wide range of measures, but most notably authorizes president to establish military commissions for
i) Embodies wide range of measures, but most notably authorizes president to establish military commissions for the prosecution of certain offenses committed by alien unlawful combatants. ii) Another significant provision denied any court or judge jd to hear or consider application for a writ of habeas corpus filed by an alien detained by the US outside the country, where the alien has been determined to be properly detained as an enemy combatant or is awaiting such determination. 3) Boumediene - struck down part of MCA stripping federal courts of jd to entertain the detainees' habeas petitions. a) Notably, Ct also found that military tribunals created under MCA and the Detainee Treatment Act of 2005 lacked sufficient procedures to provide for an adequate substitute for the habeas corpus remedy in Art. III courts. b) Found in particular following deficits in tribunals' procedures: i) Detainees lacked counsel; ii) Detainees could be detained on basis of undisclosed evidence (if labeled as classified by the military) and on basis of hearsay evidence; and iii) Subsequent judicial review in Art. III court did not allow court to independently evaluate sufficiency of government's evidence or to consider exculpatory evidence not introduced before the military tribunal. e. Non-Article III federal court continuum from least to most controversial: i. Territorial / Military / Public rights / Crowell / Raddatz / Marathon / Thomas / Schor f. Hypo: i. Vickie files a state probate claim in state court before the husband diesclaims the son committed fraud re husbands will. Vickie also files bankruptcy in bankruptcy court after husband dies. ii. Husbands son files proof of claim for defamation in the bankruptcy court. Vickie counterclaims for tortious interference wi th inheritance, a claim over which Congress explicitly gave the bankruptcy courts jurisdiction (as a core claim). iii. The son objects to the bankruptcy courts jurisdiction over the counterclaim (remember: consent = waiver). The state court rules for the son. The bankruptcy court says it has jurisdiction, citing the jurisdictional statute, and issues summary judg ment for Vicki and awards her $400 million. iv. Here, the District Court had power to conduct de novo review, undertook de novo review, and affirmed, giving no preclusive effect to the state court ruling (res judicata, anyone?). a) If any kind of appellate review could save this exercise of jurisdiction, de novo review would be it! But alas, it doesnt. v. USSC held that Congress did NOT have the power to give the bankruptcy court jurisdiction over the counterclaim because the son didnt consent. This case is more like Marathon than Thomas or Schor. Article III protects liberty by specifying the de fining characteristics of Article III judges. a) Seems like the court is talking about a due process rights! i) The Framers undertook in Article III to protect citizens . . . . Article III judges play a special role in protecting the liberty interests of citizens. Article III = the guardian of individual liberty. b) The Court is saying that this counterclaim is not compulsory. c) Who dissented? Kagan, Sotomayor, Ginsburg, and Breyer. 1) They went back to Justice Whites aggrandizing test in Marathon. vi. The BIG Q: Does a person have a due process right to Article III adjudication? 1) If there is some type of due process an individual might have, what happens if an individual suffers an injury but theres no cause of action? vii. Another BIG Q: Given the possible answers to our big questions, are the federal courts able to perform their essential functi ons? What are those functions?
I.
Justiciability: Limitations on Federal Court Review
A. Values Served by Justiciability Doctrines i. Art. III gives fed courts the power to resolve "cases or controversies" ii. Federal courts are passive recipients of specific disputes between specific litigants. iii. Tests whether case is amenable to judicial resolution iv. Federalism - prevent courts from invading prerogatives of state governments v. Separation of powers - prevent courts from invading the prerogatives of other branches of the federal government. B. Overview of Justiciability Doctrines i. Govern what matters a federal court can handle, when those matters can be brought to federal court, and who can properly bring them to the federal court for resolution ii. What - Prohibition Against Advisory Opinions, Political Question Doctrine 1) Prohibition against advisory Opinions a) Court can resolve disputes only between actual parties with opposing positions b) Parties may not collude when they have no true controversy in order to manufacture a case c) E.g., The President is wondering whether he can do something, so he asks the Court (before he does anything) whether he can do it. This case will get thrown out. d) These dont present a case or controversy within the meaning of Article III. Also, more importantly, huge SOP concerns. Making the law is up to Congress, executing the law is up to the President, and interpreting the law is up to the courts. Dont want the courts to be involved in the functions of the other branches. Plus, we want it to be clear
the courts. Dont want the courts to be involved in the functions of the other branches. Plus, we want it to be clear who is making the executive and legislative decisions so voters can hold the political branches accountable. e) Analogous to the canon of constitutional avoidance. 2) Political Question Doctrine a) Prohibition against federal court intrusion into matters best ersolved by the politically accountable branches of the federal government: Congress and Exec. b) Contemplates that courts will take a case-specific inquiry into whether a dispute turns on a non-justiciable political question c) SCOTUS has named six factors: Baker v. Carr i) "a textually demonstrable constitutional commitment of the issue to a coordinate political department ii) "a lack of judicially discoverable and manageable standards for resolving it" iii) "the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion" iv) "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government" v) "an unusual need for unquestioning adherence to a political decision already made" vi) "the potentiality of embarrassment from multifarious pronouncements by various departments on one question." d) Most frequently emphasizes first, but has never suggested that any particular combination is decisive. e) Political Q cases have been notoriously difficult to predict f) Federal courts may invoke the doctrine in order to manipulate a result on the merits of a particular dispute g) In evaluating fact patterns for PQD, consider types of matters SCt has found political q doctrine shall govern: i) Cases considering the ratification of treaties ii) Conduct of war iii) Qualifications of ambassadors iv) Enforcement of the Constitution's "republican form of government" clause v) Internal governance matters of Congress vi) Adequacy of National Guard training h) The court choosing (by Court-made rules) that a particular case is one that would be better decided by one of the other branches. i) We know that federal courts get involved all the time in hot political issues (e.g., the healthcare act, Bush v. Gore, etc.). i) Political question doctrine is NOT about the courts avoiding hot, controversial issues. Its about institutional competence. ii) And its about Separation of Powersthe relationship between the judiciary and Congress / the Executive. iii) NOT about federalismthe relationship between the federal courts and the states. j) 3 Questions to determine whether a non-justiciable political question. i) Note that these are NOT essential elements. Dont need to answer yes to all of them. k) Is this particular case textually committed to one of the other branches in the Constitution? i) We know that the President has inherent executive powersome room in the constitutional structure where he is allowed to make decisions. Discretionary power. i. This proposition originated in Marbury. ii. E.g., foreign policy matters. 1. Congress has power to declare war and controls funding, while President is commander in chief of the armed forces. 2. People challenged the constitutionality of the Vietnam War. iii. This is in many ways what the political question doctrine is aboutforeign policy is textually committed to the other branches, and they check each other, and the voters check both of them in the ballot boxes! iv. Also, Congress has authority to judge the qualifications of its members and impeach the President textually committed to one of the other branches! ii) The courts have nothing to gain and everything to lose when, for example, adjudicating the constitutionality of a war. 1. Can only delegitimize the judiciary. 2. Plaintiff whos about to get drafted certainly has standing, but nonjusticiable political question! 3. Let Congress fix the problem of a non-congressionally authorized war. 4. Or, if Congress lacks the backbone, let the voters do it next election! 5. The real check = the voters. iii) Political question doctrine gives us yet another hint as to what = the courts essential functions. i. Related to the ban on advisory opinions: Main purpose is to protect the integrity, legitimacy, and reputation of the Court. The Court would look foolish and become delegitimized if it were to issue decisions that couldnt possibly be put into effect, or that couldnt possibly do any good. ii. On the one hand, Marbury says its the province and duty of the judiciary to say what the law is, and people can interpret it to say the Court = the ultimate arbiter of the Constitution. On the other hand, can be read according to a spheres of expertise model. Political question doctrine supports the spheres of expertise reading of Marbury. iii. The President has the power to make and enter into treaties by and with the advice and consent of the Senate. Textually committed to Congress and the President! When President Carter unilaterally
Senate. Textually committed to Congress and the President! When President Carter unilaterally rescinded a treaty with Taiwan, and senators sued the President claiming he violated the treaty clause, the federal courts refused to hear it! Thats up to the political branches to resolve!!! What would be the practical consequences of a court taking this case? What good could possibly result? If you make him reinstate the treaty, the entire world will have reason to doubt any agreement the President enters (or refuses to enter) with them. Also, the Court will undermine democracyvoters cant trust that the President can represent them effectively without always being babysat by the courts. The President has to have at least some inherent executive power. The Constitution doesnt say anything directly on who has the power to rescind treaties, and the President has some inherent executive power built into the constitutional structure. Sometimes the exercise of that power is done with the voters as the check, not the courts. iv. E.g., the constitutionality of the War Powers Resolution will NEVER be decided by a federal court. 1. President got the Resolution on his desk and had to decide whether to veto it. Asked White House Counsel whether it was constitutional. They said they think that it wasnt, and Nixon vetoed it. Congress thought it was constitutional and chose to override the veto. 2. The Presidents do NOT abide by the War Powers Resolution, and the courts wont make him. But the PEOPLE, acting as voters, CAN!!! The War Powers Resolution, from the start, was meant to increase Congresss political power, NOT its constitutional power. 3. With the WPR, Congress finally has a way to contest a war, aside from the politically suicidal decision to yank funding during a war. Note that no president has ever said the WPR is constitutional, and that no federal court will ever decide that question. This is classic political question doctrine. v. The courts are worried about losing their integrity. 1. It is NOT the courts essential function to exercise voter judgment. vi. Federalism: Could Congress give the federal courts exclusive jurisdiction over all non-justiciable federal political questions (keep them out of state court by statute and de facto enforce Article III political question doctrine on the states as to federal political questions)? 1. Probably, but it would be ironic: the federal courts cannot (and will never) hear such cases. 2. So basically Congress would simply be precluding review over such questions in any court. l) Are there judicially manageable standards that will allow the court to decide the case? i) What does this mean when brilliant people cant come up with a standard? i. It means that brilliant people know their own limitations! And the limitations of the Constitution! ii) E.g., Republican Form of Government Clause i. How can the Court judge what this means??? ii. Luther v. Borden (pg. 521) 1. This had gone through the state courts already, and the states had decided what Republican meant 2. The Court let the dog lie and refused to tell the state court what the clause means. Thats up to Congress and the President. No standard by which to decide the question exists. iii. Similar issue = what is gerrymandering? 1. RACIAL gerrymandering can be decided according to an ascertainable standard (14th A Equal Protection Clause). But non-racial, political gerrymandering cases, on the other hand, are NOT justiciable!!! No ascertainable standard to determine the tipping point!!! m) If the Court decides this case, will it cause excessive interference with the operation of Congress or the Executive? i) E.g., Kent State Shootings casestudent protestors of Vietnam War, University officials called the National Guard, and several students were shot by the National Guard. Plaintiffs wanted for relief, among other things, the court to direct Congress or the Executive to develop training standards. This the federal courts cannot do. ii) E.g., What does faithful execution of the laws mean? Standard could be duty to execute any law for which President can offer any reasonable defense of its constitutionality, but this might involve excessive entanglement. What if the Executive simply hasnt been given enough funds by Congress to execute all the laws? Is the Court supposed to tell him how to spend the money, which laws are more important, etc.? NO!!! iii) BUT SEE desegregation cases (beginning with Brown) i. Courts were issuing very specific injunctions with very invasive standards. Impeded discretion of state executive and legislative branches quite a bit. ii. What = integration??? Busing, etc. standards imposed by federal district court judges quite a bit. iii. Why did the Court seem to be ok with this? Highest essential function = protecting individual liberties, even over justiciability concerns? iv. Important not to let justiciability impair the Courts most essential function of protecting individual rights??? v. Remember: possible essential functions list includes: IL, SOP, Federalism, Supremacy of federal law, Uniformity, etc iii. Who - The Standing Doctrine 1) Proved most versatile and most extensively used of all Justiciability doctrines 2) Seeks to confine judicial energy to those cases in which a plaintiff has suffered a personal injury that is traceable to the defendant's conduct and capable of being redressed by the federal court. 3) Basically appears as a routine threshold doctrine governing whether the requisites for suit are established, and on the
3) Basically appears as a routine threshold doctrine governing whether the requisites for suit are established, and on the other hand, holds fundamental importance for survival of certain types of litigation. 4) Standing decisions sometimes appear as though they are intended to dispose of the merits of a suit. 5) Constitutional Requisites a) Article III standing (tied directly to case or controversy requirement) i) Injury In Fact i. Requires that the plaintiff has suffered personal injury fairly traceable to the defendant's conduct and capable of being redressed by the court ii. Plaintiff's personal injury must be perceptible and recognized as worthy of the law's protection iii. Must be concrete and personalcannot be merely conjectural or hypothetical; iv. Analysis v. Some of the injuries the Court will consider, and sometimes recognize, are bizarre. Wont fit neatly into what we normally think of as an injury. See, e.g., Allen (pg. 410) (parents of black school children, concerned that the IRS is giving tax exemption to private schools that discriminate on the basis of race, held to NOT have suffered an injury in fact and therefore did NOT have standing to bring suit, despite alleging that the discrimination stigmatized them directly and hindered their children from receiving an education in desegregated public schoolsmere allegation that the government is breaking the law is never in itself sufficient for standing, and although stigma will sometimes satisfy Article IIIs injury requirement, it doesnt satisfy it here because these kids never applied to, and were never rejected by, these private schoolsthe injury has to be personal to the plaintiff and concreteneeds to have been actually suffered by the plaintiffcant be merely conjectural or hypothetical). 1. In Allen, the Court is telling us what is needed to meet the injury requirement of standing. Held that there was no injury, causation, or redressability. 2. Allen is a heavily criticized case. Final exams will ask whether the Courts jurisprudence in this area is consistent. Argue on the exam how they are inconsistent. OR say maybe the court got it right if people were able to open the Article III courthouse door simply by alleging someone is breaking the law wed be overwhelmed, and argue for that position. vi. Warth (pg. 428) (Plaintiffs who wanted to live in a white affluent town where there was no low-income government housing held to have NOT had Article III standing even though the zoning restrictions made it impossible for them to live there as they constructively forbade low-income housingtheir inability to live in the town was the result of intervening factors other than defendants harm and therefore could not meet the causation requirementstill useful to ask, given Allen, could they have met the injury requirement?). vii. Congress can give someone a cause of action (and ensure a claim is redressable by the federal courts), but it can NOT give someone standing, even by re-drafting 12(b)(1). viii. The court is very liberal in accepting injuries as long as they are concrete and personal and arent merely hypothetical. See, e.g., Duke Power (pg. 429-30) (pollution causing aesthetic effects on two lakesinjury requirement met) ix. Courts are wary of abstract injury, preferring to adjudicate tangible losses flowing from economic or physical harm. 1. They are willing to protect such matters of character of a neighborhood and environmental quality, so long as the threatened harm is not too speculative or obscure. x. As an initial matter, however, plaintiff must show they are subject to harm. xi. Abstract Harms 1. Quality of injury itself is not of a character sufficient to confer standing, regardless of whether the plaintiff has taken actions that would subject her to injury. 1. Plaintiffs encounter problems when they assert abstract harms 2. SCt cases delineate parameters of establishing standing based on abstract harms 1. Demonstrate that the more concrete facts supporting plaintiff's personal injury, more likely the plaintiff will be able to establish standing to sue for abstract harms. 2. Laidlaw 1. SCt explained t hat plaintiff environmentalists must show that they use an affected area and suffer because the "aesthetic and recreational values of the area" are lessened by the defendant's activity. 2. To find Art. III standing in an environmental cases, courts insist that plaintiffs offer more than "general averments," "conclusory allegations" and "speculative 'some day' intentions" to enjoy a recreational area 3. Even specific factual allegations are sometimes not enough 3. Lujan 1. Court acknowledged that "the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing" 2. Even though Congress had attempted to confer standing on the plaintiffs, Lujan Court held that the plaintiffs lacked standing because they established only that they had viewed the animal species in the past, and had no specific plans to view them in the future. 4. Massachusetts v. EPA - Special Standing Rule for States 1. Sct decided that Mass had standing to challenge the EPA's refusal to regulate new car
1. Sct decided that Mass had standing to challenge the EPA's refusal to regulate new car emissions of greenhouse gases pursuant to the Clean Air Act 2. In so holding, Ct noted "considerable relevance that the party seeking review I s a soverign State and not, as it was in Lujan, a private individual 3. Ct. determined Mass had standing only because Clean Air Act provided Mass with procedural rights to challenge EPA action (and inaction) 4. Also because Mass. Had "well founded desire to preserve" its coastal property threatened by rising sea levels 5. Observing that Mass had "interest in all the earth and air within its domain," Court also reasoned Mass. "alleged a particularized injury in its capacity as a landowner," since it owns substantial coastline property. 6. Ct says states should receive "special solicitude" in standing analysis 7. Greatly emphasized Mass' status as a "sovereign State and not...a private individual." 1. Appears that alleged procedural right violation in the case was not essential to Court's finding of an injury in fact. xii. Ban on Taxpayer Standing Provisions 1. Citizens generally do not have standing in their status as taxpayers. 2. SCt: taxpayer's interest in making sure govt funds are lawfully spent does not provide type of injury required for Art. III standing. 3. Exception: Establishment Clause 1. Ct has deviated from general prohibition in litigation to enforce "Establishment Clause" protecting govt from officially preferring one religious group over another 2. Does not apply to executive branch regulations, is confined solely to instances where a legislative enactment expressly authorizes or appropriates funds in contravention of the EC. 3. Flast v. Cohen - Court allowed taxpayer standing for establishment clause challenge, so long as taxpayer could establish link between taxpayer status and legislative enactment attacked. 4. Court cut back after Flast, showing willingness to find taxpayer standing only where challenge focuses on expenditure authorized by a legislative act, rather than on actions by other departments of government 1. Hein - denying taxpayer standing for establishment clause challenge to executive branch centers for faith-based initiatives funded by general executive branch appropriations and operated as part of federal agencies and departments 2. Valley Forge - denying taxpayer standing for establishment clause challenge to federal agency's decision to grant surplus land to a religious college. 4. US v. Richardson - Court denied plaintiff taxpayer standing to challenge secrecy of CIA's budget. Plaintiff's challenge was based on a right to statement and accounting of public funds and thus did not rest on a right tied directly to the expenditure power -- unlike establishment clause cases where Court has upheld taxpayer standing 1. SCt rigorously insists on nexus between government's expenditure power and legal violation, even rejecting standing for plaintiff complaining about govt agency's insistence on keeping its budget secret. 5. Analysis 1. The Courts taxpayer suit jurisprudence is all spelled out in Hein (pg. 453)!!! 1. Note that taxpayers always have standing to challenge the collection of a tax because being forced to pay a tax is a real and immediate injury to the individual taxpayer. 2. BUT, taxpayers, with one narrow exception (see Flast below), do NOT have standing to challenge the governments expenditure of tax revenue (too generalized / attenuated / remote / uncertain / indirect to constitute an injury in factnot particularized). 3. A citizen raising only a generally available grievance about government (e.g., claiming only harm to his and every other citizens interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large) does not state an Article III case or controversy. 2. Frothingham (pg. 465) = NO standing! 1. Plaintiffs alleged Congress was using its taxing and spending power in a way that violates the Tenth Amendment. No standing. 2. No concrete, personal injuryonly a generalized grievance. Therefore no standing! 3. Flast (pg. 457) = STANDING! 1. Plaintiffs alleged that Congress was using its taxing and spending power in a way that violated the Establishment Clause. Standing!!! 2. Need to explain how to distinguish this case from the others in this section. 3. The Establishment Clause is a very special clausecontains a very specific limitation on congressional power. 1. The Tenth Amendment does NOT have so specific a limitation on congressional power. This is NOT a generalized grievance. Rather, this is a concrete, personal injury. Therefore, standing to sue! 4. Exception made because the EC = a specific limitation on Congresss exercise of its
4. Exception made because the EC = a specific limitation on Congresss exercise of its taxing and spending power under Art. I, Sec. 8. 4. Valley Forge (pg. 467) = NO standing! 1. Executive agency gave 500,000 acres of land to a Christian collegeplaintiffs needed to establish they dont fall into the Courts ban on generalized grievances in taxpayer suitsso they said that this gift by the government violated the Property Clause (Art. IV, sect. 3) and the Establishment Clause. No standing. 2. This isnt Congress, but rather the executive. It would be different if Congress had mandated that the Executive do it. Then we would basically have a Flast case. 3. No concrete, personal injuryonly a generalized grievance. Therefore no standing! 4. Establishment Clause is a direct, specific limitation on Congresss power to tax and spend, but its limitation on the executive is not so direct and specific. 5. Hein (pg. 453) = NO standing. 1. Plaintiffs relied on Flast to argue they had standing, but the Court here took a Narrow reading of Flast. 1. Flast exception to ban on taxpayer suits does NOT cover simply every claim that expenditure of government funds violates the Establishment Clause. 2. President promoting religious organizations. Wanted religious organizations to be able to compete for federal funds on a level playing field with secular organizations. Plaintiffs alleged Establishment Clause violation. 3. This case dealt with discretionary funding. 1. Its not one of the essential functions of the Court to police discretionary funds. 2. Its the province of the voters, NOT the courts, to judge the Presidents use of discretionary funding. 3. Theres no injury here: the plaintiffs are upset, but they are upset as voters, not plaintiffs. Its not the job of the judiciary to try to redress that kind of injury. Its redressable in the ballot box. 4. This isnt Congress, but rather the executive. 1. It would be different if Congress had mandated that the Executive give the religious organizations $$. Then we would basically have a Flast case. 6. In some ways its reasonable what the Court is doing in these cases. 1. The President will always have some discretionary $$, and its not up to the Court how he spends it. Its up to Congress and the voters. 2. The ONLY specific limitation on Congresss taxing and spending power is the Establishment Clause. 3. The ONLY taxpayer suits that will have standing are those that allege Congress is violating the Establishment Clause in the way it taxes or spends xiii. Standing to Seek Particular Remedies: "Citizen Suit" Provisions 1. Plaintiff must establish standing for every type of remedy sought. 2. Duke Power (pg. 429) 1. Seems like a flukey case! Injury seems VERY hypothetical and conjectural. 2. This opinion has been heavily criticized. 1. Many think the Court was politically pressured into finding standing because nuclear power builders would NOT build until they could be assured they would have limited liability. 2. The Court had to reach the merits on this case to settle the playing field and give builders the confidence they needed to start building. 3. Standing Requirements for Injunctive Relief - Lyons 1. LA police stopped man fro traffic violation and choked him to point of unconsciousness. Plaintiff, Lyons, alleged police department policy of applying unnecessary, life-threatening chokeholds and sought damages as well as injunctive and declaratory relief. 2. Ruling only on injunction request, Court held that Lyons lacked Art. III standing to seek injunction against chokehold policy 3. Ct reasoned that Lyons failed to show that the threat of future injury was "real and immediate" rather than "conjectural" or "hypothetical" 4. The Lyons Test for Injunctions: 1. Requires a showing that both sides of the controversy will take action, making likely a recurrence of the events giving rise to the first injury. 2. To have standing for injunction against deadly chokeholds, Lyons would first need to allege that "he would have another encounter with the police" and would have to "make the incredible assertion either (1) that all LAPD officers always choke any citizen with whom they happen to have an encounter, or (2) that the City ordered or authorized police officers to act in such a manner. 5. Davis - "a party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct." 6. Lower courts have also applied this rigorous test in cases for declaratory relief. ii) Causation
ii) Causation i. Defendant must have caused the injury 1. Requires that the injury be linked to the defendant's conduct ii. Allen v. Wright 1. Court found causation clearly lacking because parents' injury was "highly indirect" and resulted from "the independent action of some third party not before the court." 2. Parents of black schoolchildren claimed that IRS had failed to satisfy its obligation to deny taxexempt status to racially discriminatory private schools 3. Reasoning that IRS's actions amounted to government aid to discriminatory private schools, parents made two arguments: 1. The aid stigmatized them and their children, and 1. Court concluded that arg failed because "stigma" does not amount to actual injury in fact 2. The aid diminished their children's chances of receiving an integrated education. 1. Ct acknowledged that relief requested could redress injury bcause a change in IRS policy "might have a substantial effect" on desegregating public schools 4. Parents maintained that if IRS enforced the law, private schools either would have to stop discriminating so they could receive the tax break again or would have to charge more tuition to make up for the lost tax savings. 5. Even if they had an injury, they could not show how the IRS caused that injurythe fact that the schools are not racially-integrated is not caused by the IRS grant of tax-exempt statusalthough the plaintiff could have argued, albeit speculatively, that if the private schools didnt have taxexempt status, they would have to charge more for tuition and some white children would have to go to public school). iii. Redressability 1. The requested relief must be designed to remedy the injury. 2. Plaintiff must identify some form of relief that will alleviate the injury the defendant has caused 3. May pose a problem for plaintiff who cannot identify specific injury or show requested remedy will have significant impact on life. b) Prudential standing i) Prudential limits ensure that courts do not "decide abstract questions of wide public significance" where other governmental institutions are more competent to provide effective guidance (Warth v. Seldin) ii) Prohibits the following: i. Third-Party Claims: "A litigant's raising another person's legal rights" 1. Warth v. Seldin - A plaintiff may not rest his claim to relief on the legal rights or interests of third parties." 2. Ensures self-determination of third party, who may not want rights or interests litigated. 3. Parties are presumed to be best positioned to press their own interests. 4. For that reason, limiting standing to those who own interest is at stake enhances quality of litigation, the concrete context of the suit, and the court's decision-making 5. SCt has relaxed considerations in recent years to allow exceptions to rule, esp when third party is likely to encounter an obstacle to asserting a claim on her own behalf and the plaintiff has a relationship with the third party. 6. Also recognized an exception in First Amendment cases where a plaintiff argues that a law is overbroad, infringing in FA rights of others not before the cort. ii. Adjudicating "generalized grievances" 1. Warth - no standing where plaintiff asserts a general concern that is "shared with substantially equal measure by all or a large class of citizens." 2. Applies where plaintiff is suing simply as a citizen upset that the govt is flouting the law or as a taxpayer concerned that the government is expending funds illegally 3. Ct. has allowed plaintiffs to sue as taxpayers claiming violations of the EC, but Ct suggested prohibition has rigorous constitutional dimensions, characterizing plaintiffs with generalized grievances as lacking Art. III standing. 4. Lujan is example of how prudential concern is sometimes difficult to distinguish from Art. III injury-in-fact requirement iii. Zone of Interest: Lawsuits seeking judicial enforcement of rights outside "the zone of interests protected by the law invoked." 1. Requires plaintiffs to show that their asserted injuries implicate interests that are "arguably within the zone of interests" protected or regulated by the law they seek to enforce. 2. Courts apply where plaintiff seeks to enforce statutory standard, frequently in context of administrative proceeding; infrequently in Constitutional litigation. iii) Prohibition is discretionary, ct may choose not to enforce prudential limitation even if it does apply in case. iv) Standing Timeline i. Frothingham (1923) (no), Flast (1968) (yes) (Establishment Clause), Richardson (1974) (no), Schlesinger (1974) (no), Duke Power (1978) (yes) (nuclear power), Valley Forge (1982) (no), Allen (1984) (no), Lujan (1992) (no), Akins (1998) (yes) (right to vote), Laidlaw (2000) (yes) (environmental pollution), Hein (2007) (no). 1. What inferences can we draw from this timeline? Does it matter what the composition of the Court
1. What inferences can we draw from this timeline? Does it matter what the composition of the Court is? What type of claim is presented (but see Scalia dissent in Akins)? Are these decisions consistent, or inconsistent? Should it be easier to get into federal court when you allege a personal constitutional violation (as opposed to a structural constitutional violation or a statutory violation)? Wouldnt that best serve the value of SOP? The Court doesnt want to do a job evaluation on a co-equal branch unless there is clearly an actual controversy, but not as much SOP concerns when the Court is protecting individual liberties (and thus performing its most essential function). Maybe its not the job of the Court to enforce structural constitutional provisionsits the job of the voters instead. v) Another broad question: Is the Constitution self-executing? i. Can a plaintiff who has suffered a violation of an individual liberty merely invoke that constitutional provision as the basis for his cause of action? Or does a plaintiff need to have a statute (e.g., 42 U.S.C. Sec. 1983) before he can bring suit? And if the latter, is it dangerous to have a political branch in control of whether, and which, claims for constitutional violations can be brought? Congress already largely controls the jurisdiction of the federal courts. Would giving Congress this type of control tip the SOP scales too far? Would it endanger one of the judiciarys essential functions??? vi) Another broad issue: i. We know that plaintiffs can bring federal Qs to state court unless Congress has made federal jurisdiction exclusive. State courts have their own procedures, but jurisdiction in state courts is presumed (because they are courts of general jurisdiction, unlike federal courts). Thus standing requirements are often relaxed in state courts. So what if a federal question case works its way all the way up to the state supreme court, but there isnt enough justiciability to get it into federal court? Would the Supreme Court be pressured to relax standing requirements to grant certiorari on a case where it strongly feels the state court got it wrong on an important federal question? The possibility of state courts deciding federal questions without federal court review flies in the face of the Supremacy Clause. We should assume that the Court wouldnt interpret its justiciability doctrines so rigidly that it would strip itself of the ability to perform one of its most essential functions: safeguarding the supremacy of federal law. Why would the Court disempower itself? That was justiciability doctrine really is. ii. Might say that for the purpose of the supremacy of federal law that the Court should relax standing requirements in such casesdont want state courts to be the ultimate arbiters on important federal questions. Would impede one of the Courts essential functions. Remember that the justiciability are NOT in Article IIIthey are judicially-constructed rules used to interpret cases or controversies in Article III. In a sense, the Court is simply making all of this up. 6) When - ripeness/mootness iv. Conclusion 1) Weve seen how cases have developed on Congresss control over Article III jurisdiction, constitutionality of Article I courts, and how the courts will limit the types of cases they can hear (justiciability). These are all pieces of the Article III pie. Its up to us on the final to argue whether the Court has struck the right balance. 2) Convey knowledge, depth of analytical skills, and creativity on the exam!!! 3) If you can do calculus, then do calculus! Shell know you can do algebra and geometry by implication. 4) Translation: Write as abstractly, philosophically, and law-review-article-like as you reasonably can. 5) Mastery of BROAD themes is better than spending time relating particular details. 6) Emphasize NORMATIVE over descriptive perspectives. a) (BUT MUST DESCRIBE the salient aspects of the cases you talk about). 7) Be VERY opinionated and back it up with innovative, good reasons. 8) Write like a memo, NOT a brief!!! 9) Its not what you know, but rather how you express what you know II.
Federal Court Relief Against Federal, State, and Local Governments and Officials
A. Suing State Governments: The Eleventh Amendment i. Overview 1) General rule of 11th A: Federal courts do not have jurisdiction to hear suits against states (a 12(b)(1) issue). 2) Plaintiffs can NOT bring either a federal question or a diversity case against a state in federal court. 3) Keep in mind that plaintiffs can always try to bring their suit in state court. a) BUT, to protect its essential function of safeguarding the supremacy of federal law, the Court has created three exceptions: Young, consent / waiver, and abrogation. ii. Text 1) "The judicial power of the US shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign Sate.
against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign Sate. 2) Tracks the language of Article III, but is used instead to put in a knotdefine what Article III jurisdiction does NOT cover. 3) Compare the language of Article III The jurisdiction shall extend to the language of the Eleventh Amendment The jurisdiction shall not extend. iii. Construction 1) Does not mean even close to what the text would suggest! 2) About sovereign immunity. Used to quell antifederalist fears that states gave up their sovereign immunity by signing onto the Federal Constitution. 3) Plaintiffs suing states in federal court, or being prohibited from doing so. What essential functions are implicated by this ? 1. Federalism 2. Individual liberties (post- 14th A incorporation). i) This value largely NOT implicated by suing states UNTIL after 14th A!!! See Barron v. Baltimore. Thats when we stopped trusting the states to protect individual rights. At first, the Court read the P or I clause out of the 14th A, and gave limiting constructions to the EP and DP Clauses. But then, the Court gradually developed SDP doctrine for DP Clausestarted applying BOR to the states. ii) Dont want states to be able to claim sovereign immunityotherwise, there will be no redress for my injury!!! 3. Separation of Powers i) Section 5 of the 14th A says The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. ii) Congress will take on the Court and put it in its place! iii) Passed in reaction to Chisholm and at first read to prohibit a citizen of state A from suing state B (Chisholm). Soon thereafter, read to prohibit a citizen of state A from suing state A (Hans). iv) For a long time, this was the Eleventh Amendment rule. v) This rule presents a lot of problems and backs the Supreme Court into a corner. i. We have our essential functions list, and with this rule in place, the Court has rendered itself powerless to enforce the constitution against the states. ii. You might say that we can trust the states, but for those times when we cant, we want the Court to be able to uphold the supremacy of federal law, and especially the Constitution. iii. This was not as much of a problem before incorporation since the Bill of Rights did not apply to the states. But after incorporation, the Courts expansive reading of the Eleventh Amendment would come to pose a HUGE threat to the Courts essential function of safeguarding individual liberties. 1. How to get redress from a states violation of your constitutional rights? iv. History: Sovereign State Exception 1) Eleventh Amendment was direct, precipitate reaction to Chisolm v. Georgia embodying specific language to overturn the result in that case 1) Chisolm v. Georgia a) Filed in SCt by SC merchant against Georgia to recover under a contract. SCt held that suit could continue in federal court, rejecting Georgia's assertion that federal courts could not assert jurisdiction over a sovereign state. b) Reaction was dramatic: i) Ga. Legislature adopted statute declaring that any person who took action to enforce judgment was "guilty of felony and shall suffer death, without benefit of clergy, by being hanged" ii) Congress members immediately proposed constitutional amendments to overturn the result in the case, and within a short time the Eleventh Amendment became law. c) Chisholm v. Georgia a. Plaintiff from South Carolina trying to sue the state of Georgia for a debt the state allegedly owed the plaintiff from the Revolutionary War. The 1789 Judiciary Act arguably allowed that suit to be brought in federal court. The Court rationalized that the states gave up their sovereign immunity when they signed the Federal Constitution. b. SEVERE, emphatic reaction to Chisholmthe Georgia House of Representatives passed a bill saying that any person attempting to exercise process in the Chisholm case (i.e., carry out the judgment and force payment of the debt) would be guilty of a felony and hanged, without the benefit of clergy!!! c. Reaction to Chisholm inspired the Eleventh Amendmentsays that a Chisholm type of case cannot be brought in federal court. Enacted with the purpose of making clear that the states did NOT give up their sovereign immunity when they signed onto the Federal Constitution. i. My question: But didnt the states at least give up a tiny bit? For example, the text of the Constitutions (NOT BORs) Privileges and Immunities Clause (right to free travel between states, etc.)was that an implicit waiver of sovereign immunity? Is the Constitution self-executing? 2) \Hans v. Louisiana i) Suit by La. Resident against state of La, arguing that state had unconstitutionally impaired the obligation of contracts by refusing to pay interest owed on bonds it had issued. ii) Ct. held that Eleventh Amendment prohibits suits against a state by its own citizens as well as by citizens of other states and foreign countries. iii) While terms of 11th Ad. Prohibit only suits by citizens of other states, Ct. reasoned that to allow a state to be sued by its own citizens in federal court would be "anomalous" iv) The Court interprets the Eleventh Amendment to say that states can violate federal law and cannot be sued in federal court because of sovereign immunity.
federal court because of sovereign immunity. v) Implicated ALL the essential functions of the federal courts!!! vi) Like before, the Court announced a crazy principleCourt then pressured to start creating exceptions because the Supremacy of federal law, one of the Courts most essential functions, was at stake. vii) Court will start looking for ways around the Eleventh Amendment 3) Hans spurred tremendous debate, providing focus for dueling interpretations of the Eleventh Amendment i) "Sovereign Immunity" Theory (Pennhurst) One. Proposes that 11th Ad. Embodies wide-ranging constitutional notion of sovereign immunity, shielding states from vast array of federal suits. Two. Endorses result in Hans and likely commands allegiance of majority of SCt Justices Three. Idea is that framers structured balance between state and federal power with the assumption that states would enjoy immunity from federal suits, and that Chisolm erred in failing to defer to that original assumption of sovereign immunity. Four. 11th Ad. Is limited in scope because it needed only to correct Chisholm's mistake - put back into the Constitution what Chisholm had taken away. Five. Remainder of states' sovereign immunity remained undisturbed by the decision and the 11th Amendment need not therefore describe that immunity Six. Often associated with notion that 11thAd is a bar on SMJ, and that invoking "the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III. First. 11thAd framed in SMJ terms Second. Characterization breaks down, however, because 11th Ad doctrine makes plain that states may waive the 11th Ad bar to suit. Third. Moreover, SCt treats 11thAd bar with less solemnity than it generally approaches matters implicating SMJ, stating that courts may, but need not, raise 11th Ad problems on their own motion. ii) "Diversity" theory One. Notes that Art. III permits SMJ based on either content of litigation (such as federal question jd or admiralty jd) or the parties' identifies (such as suits involving governmental entities or citizens of different states) Two. Observing that the language of the 11th Ad focuses only on diversity suits against state by citizens of another state, diversity theory concludes that 11thAd constrains suits in federal court only by virtue of the diverse identifies of the parties. Three. Reasons: First. 11thAd designed to eliminate only that party of Art. III jd authorizing federal court to adjudicate (a) suits by citizens of one state against another state" and (b) suits by citizens or subjects of any foreign nation against a state. Second. If a suit has another basis for satisfying Art. III jd - such as content of the suit -- then 11th Ad. Does not remove suit from federal judicial power. Third. Thus, 11thAd does not disqualify federal question or admiralty suits from federal court even where parties fall within the prohibited categories that the Amendment describes . iii) "Literalist" theory One. Takes language of 11thAd at face value, noting that Ad's prohibition is not confined to particular subject areas. Two. Accordingly, literalists would disqualify all suits against states by the particular plaintiffs listed in the Eleventh Amendment ("Citizens of another State, or by Citizens or Subjects of any Foreign State") regardless of the contents of the suit: state common law, federal question, admiralty, or other subject matter. iv) Should the Eleventh Amendment rule be treated: One. as a common law immunity, Two. as a subject matter jurisdiction bar in diversity cases only; Three. or rather as a subject matter jurisdiction complete bar in both diversity and federal question cases against a state? First. Keep in mind some of the basic principles weve already learned, because they bear on this: Second. An essential function of the federal courts is supremacy, and the second option doesnt seem to threaten this constitutional value because the courts can still get federal question cases. Third. If I were in Congress and wanted to have as much power as possible to regulate the jurisdiction of the federal courts, I would go for option (1) as the rationale behind the Eleventh Amendment Congress wants to be able to control federal question jurisdiction as much as possible, and statute can always override common law. We know that Congress cant add to the jurisdiction of the federal courts but can shrink their jurisdiction so long as they dont impede the courts essential functions. Fourth. If I were a state, I might also want option (1) because then Id have the power to waive my immunity when I want to. You cant waive an Article III subject matter jurisdiction defecta 12(b) (1) problem. Why would a state ever want to consent to being sued and waive its sovereign immunity? But couldnt a state just want to allow the suits in its own courts? Even if we select option (3), states are still free to afford their own remedies in their own courts. Is there a qualitative difference between state courts and federal courts? Fifth. Sometimes youll see an opinion suggest interpretation (3) but then go on to say plus, the state
Fifth. Sometimes youll see an opinion suggest interpretation (3) but then go on to say plus, the state didnt waive its immunity here, which suggests interpretation (1) because if 11th A = a SMJ problem, then waiver would not be relevant!!! Doesnt make any sense. v. Exceptions to the Eleventh Amendment 1) Ten Ways into Federal Court Hypo a) Facts: Govt is acting in way that causes Vera damage; she needs to file lawsuit, and believes she would get the fairest reception in federal court. Vera believes that state is causing most of the problem, so she knows that 11thAd bar could be significant obstacle. What options, alternatives, or exceptions should Vera consider in order to avoid 11thAd bar to suit? 1. Sue a governmental entity other than the state, such as the city or a political subdivision that is not an arm of the state 2. Orchestrate a suit by the United States acting as plaintiff that might provide her with some benefit (without appearing to benefit herself only) 3. Orchestrate another suit by another state acting as plaintiff that might provide her with some benefit. 4. File the suit in state court (if she can do so under state sovereign immunity doctines) with knowledge that she might be able to get case ultimately to SCt, which is not subject to 11thAd restrictions. 5. File suit in state court and create circumstances where state would be tempted to remove the case into federal court (thus, waiving the 11thAd Bar) 6. Name a state official as a defendant, assert a violation of federal law, and ask for injunctive relief for the federal law violation. 7. Name a state official as a defendant, ensure that the defendant is named in his or her "individual capacity" and try to get around common law immunity doctrines in order to recover damages. 8. Brainstorm c/o/a/ under federal statute where Congress has effectively abrogated the 11thAd bar. 9. Brainstorm a cause of action under federal statute where the state has waived the 11thAd bar. 10. File suit against state under circumstances prompting state to waive 11thAd for purposes of this particular case. 2) STATE SOVEREIGN IMMUNITY: Ex Parte Young and its Progeny a) Young Court held that "one of the United States" in 11thAd prohibition does not include suits seeking to stop representatives of a state from acting essentially on behalf of a state in an unconstitutional manner. b) Suits in federal court against state officials in their official capacity for prospective injunctive relief are ok c) Suits against state officials in their official capacities seeking money damages are prohibited by the 11th A, which protects state treasuries. d) Young is seen as an essential fiction toward the end of safeguarding Supremacy. The AG was about to enforce a state law that a federal court had declared unconstitutional. An official that is enforcing an unconstitutional state law is said to be stripped of his official capacity for purposes of 11th A. This is a fiction because the 14th A requires state action for a violation. So an official enforcing an unconstitutional state law is stripped of his official capacity in order to be open to suit under the 11th A but NOT stripped of his official capacity for determining a violation of the 14th A. NOT a state actor for 11th A, but considered a state actor for 14th A. e) This fiction would NOT be necessary if the 11th A were interpreted to be only a jurisdictional bar for diversity cases. This fiction is only needed if the 11th A bars federal question suits against states. The language of the 11th A might suggest it bars only diversity suits, but we know from Hans that the 11th A bars federal question suits! So this is where the Court begins chipping away at Hans and Chisholm. f) We can see that the 11th A has a whole lot to do with federalism: state power vs. federal power. Where you fall on the federalism continuum will likely impact which interpretation of the 11th A you favor. g) The Court said in Adelman that the cost of complying with an injunction that the state will incur (which will come out of the states treasury) are merely ancillary and are ok under the 11th A. Ok too are state indemnifications of public officials (this raises the idea of consent, which only makes sense if were NOT talking about subject matter jurisdicition and are only talking about common law immunity). More and more, modern conservative courts have been injecting language suggesting that the 11th A is a jurisdictional bar, and this is TOTALLY inconsistent with the ideas of consent and waiver. h) Here, the Court says the AG is about to enforce an unconstitutional law against the plaintiffs and for that reason is stripped of his authority. i) In our system of government, the AG does not have the power to do such things. ii) Here, the Court takes the 11th A cloak off the AG so that the 11th A doesnt bar this suit. Simultaneously, underneath that cloak is still the 14th Amendment state actor cloak. iii) The 11th A and 14th A are in tension: one cannot have a violation of the 14th A unless there is state action, but state action is exactly what the 11th A protects!!! a. So that AG has to remain the state for the purposes of being enjoined under the 14th A, but the Court simultaneously says that the AG is stripped of his authority under the 11th A. iv) This is what we call the fiction of Young. And this highlights the central issue: if the 11th A was a SMJ defect only in diversity suits, we would not have needed this fiction. v) Young therefore tells us that in addition to diversity suits, the 11th A applies to federal question suits as well! vi) This reaffirms the interpretation the Court had espoused in Hans. i) Logic Behind Young a) Concerned Minnesota legislation that fixed railroad rates and threatened stiff criminal penalties for railroads that did not comply with the rate structure. b) Believing that legislation violated 14th Amendment, due process, and other federal constitutional guarantees,
b) Believing that legislation violated 14th Amendment, due process, and other federal constitutional guarantees, railroad shareholders brought suit against Minnesota AG, Young, seeking to enjoin him from enforcing the law. c) SCt allowed litigation to proceed -- and allowed the injunction to bind Young -- on the theory that the suit was not against "one of the United States" for the purposes of the Eleventh Ad. d) In Ct's conception, Young's actions were not even attributable to the State of Minnesota: i) Young was accused of violating the US constitution. ii) In ratifying the federal Constitution, states ceded to federal power by operation of the Supremacy Clause iii) As a consequence of the Supremacy Clause, states are without authority t violate the Constitution, and therefore cannot lawfully authorize anyone to violate the Constitution on their behalf. iv) Where an official is violating the Constitution, the official must therefore not be acting under authority of a state. v) Thus, Young was not acting under state authority. e) BUT: Young was sued precisely because he was acting on behalf of he state. i) As AG, he had authority to enforce state laws, including the law regulating railroads that was at issue in the litigation. ii) The injunction that the plaintiffs sought purported to bind him from taking official action in enforcing the state legislation. iii) Therein lies the irony: even though was identified because of his official position, he was deemed to be "stripped" of his affiliation with the state and treated as a private citizen for the purposes of the Eleventh Amendment bar. j) Young is a Legal Fiction a) Fictional quality emerges when one considers what is required to trigger Fourteenth Amendment protection. i) Individuals can be state actors under the Fourteenth Ad only if their actions are attributable to the state. ii) But for the purposes of the Eleventh Amendment bar, the actors' constitutional violations strip them of official status. b) Constitutional doctrine "has it both ways" i) An individual effectively is the state for Fourteenth Amendment purposes, but is not the state for Eleventh Amendment purposes. k) The Prospective/Retroactive Distinction a) Edelman v. Jordan: The Basic Concept i) Young suspends the Eleventh Amendment bar only for suits seeking forward-looking relief, such as injunctions. i. Specifically, Ct ruled that 11thAd prevents an award of money damages paid from the state treasury, even if the suit names only a state officer as defendant. ii. Facts: 1. Plaintiff sued administrators of Illinois welfare department arguing the department was not processing claims with sufficient speed. Lower ct ordered administrators to speed claims processing in the future and to provide "equitable restitution" of the past benefits rightly owed to the recipients. Given that SCt had earlier ruled that a federal court may not award money damages to be paid from a state's treasury, the plaintiff's request for equitable restitution presumably sought to align the remedy with injunctive relief, as opposed to a damages remedy. iii. Class action suit asking federal court to make state actors give plaintiffs money to which they were entitled under the federal-state programs administered under a federal act for the disabled. iv. Federalism issues here: it will cost the state money to comply with the injunction and this money will have to come from the state treasury. The plaintiffs are trying to protect the supremacy of federal law. v. Young means that one can go to federal court and get prospective injunctive relief against the state but can NOT get money damages against the state. i. If plaintiff sues state official in his or her official capacity for prospective injunctive relief, thats ok under the 11th A (because thats essentially what was allowed in Young). ii. BUT, if I sue for money damages, thats deemed to be a suit against the state itself and is barred by the 11th Ad. vi. SCt was not persuaded by distinction - Ct upheld lower court's injunction as prospective relief appropriate under 11thAd, but concluded that equitable restitution was improper because it was the functional equivalent of damages: it would operate retroactively and would "to a virtual certainty be paid from state funds, and not from individual state officials who were defendants in the action. ii) Edelman court appeared to be motivated by desire to draw clear line between prospective and retrospective relief, but conceded that difference is not "day and night" iii) Acknowledged that "necessary result of compliance" with prospective relief could substantially burden the state treasury -- an effect normally associated with retrospective relief. iv) Ct reasoned, however, that such an ancillary effect on the state treasury is permissible and often an inevitable consequence of Young i. Ct's use of ancillary concept has changed over the years. b) State Sovereignty and Autonomy i) Values underlying 11thAd - for this reason that 11thAd jurisprudence exhibits distaste for specific orders,
i) Values underlying 11thAd - for this reason that 11thAd jurisprudence exhibits distaste for specific orders, even if they are prospective. ii) States must comply with federal law. But, respect for state autonomy and the process of democratic state government counsel in favor of allowing states to decide how to comply without unnecessarily earmarking state funds or honoring federal urt injunctions and diverting money from other pressing matters. iii) Eleventh Ad preference rooted in preference for allowing democratically elected officials (not lifetenured federal judges) to make tough decisions bout who gets society's resources. l) Ex Parte Young Fiction Breaks Down a) For State Law Claims: i) Pennhurst - prevents plaintiffs from bringing state and federal claims together in one action. 11thAd bars federal court plaintiffs from asserting claims based on state law violations, even if the suit names only state officials. i. State school and hospital. Plaintiffs allege the official running this state institution failed to comply with federal law and state law. Didnt provide the residents with the things that state and federal law required him to provide. Plaintiffs sought prospective injunctive relief (just like in Young). How did the state law claims get into federal court in the first place? Supplemental jurisdiction! Part of the same [federal] case or controversy under Article III! ii. The Supreme Court said that this did NOT fit into the Young exception. Can NOT get prospective injunctive relief against a state official to comply with state law. The 11th A bars this! iii. Federalism is being protected here. Plus, the whole premise behind Young is that we need to protect the Supremacy of federal law. Here, supremacy is not threatened because its a state law issue. So this exception to the Young exception makes sense on two levels! iv. One view: Distinction appears artificial and unjustifiable! 1. Is the impact on state sovereignty, autonomy, and financial resources dramatically different where the theory of liability derives from state law rather than federal law? Not really. 2. One could argue states might be especially insulted when plaintiffs use the federal courts to punish them for their violating their own rules - "shot with your own gun" but humiliation might not justify outright prohibition against state law claims in federal court. 3. Formal reasoning, rather than pragmatic goals, explain the result in Pennhurst 1. Linchpin of Young reasoning is Supremacy Clause: since states are subject to superior federal authority under the Constitution, they are incapable of authorizing officials who violate the Constitution, and thus officials who violate the Constitution cannot be doing so on behalf of the state. 2. Where alleged violation is of state law, supremacy clause drops out of equation and fiction collapses 1. Without Supremacy Clause restricting range of actions state can authorize, an official violating the law would theoretically be acting on behalf of the state. 4. Can have harsh effect on individual litigants by removing option of supplemental jd and sometimes eliminating possibility of pursuing relief in any forum for state law violations. b) The "Official Capacity"/"Individual Capacity" Distinction i) Young operates only against officials, theory being that state cannot authorize them to violate the Constitution BUT those officials named as defendants in Young fiction must be sued in their "official capacity" ii) Seminole Tribe v. Florida - Ct refused to allow Young fiction to operate in instance where Congress had created elaborate scheme imposing limited liability on the state itself. iii) Individual Capacity Suits i. Litigant may choose to sue official in individual capacity, as litigant would do in ordinary tort suit against private tortfeasor. Plaintiff may claim retroactive relief and damages would at least theoretically come from official's "own pocket" BUT these suits vary from traditional tort actions because: 1. Absolute and Qualified Immunity: Official may claim protection from common law immunity doctrines, separate and different in scope from sovereign immunity 1. Doctrines differ depending on function official performs, in some cases shrouding official in absolute protection. More often, shield official from liability if she acted in an objectively reasonable manner given the facts known and the state of clearly established legal principles. (Hope v. Pelzer, Anderson v. Creighton) 2. Indemnification policies under which state decides to act as insurer for officer. 1. Extends farther than immunity protection. 2. Official held liable in individual capacity might fail to show that she is entitled to common law immunity, but nonetheless may be protected under a state's indemnification policy, which would pay the judgment. 3. States cannot claim 11thAd or sovereign immunity from paying such judgments, because their decisions to indemnify these officials are voluntary. 4. Essentially a matter between state and official, although plaintiff actually trying to satisfy a judgment may encounter cumbersome bureaucracy when trying to obtain payment from fund.
payment from fund. ii. Determination does not depend on whether the officer was performing official functions at the time the alleged harm occurred; rather, determination depends on plaintiff's intent: if she seeks damages against the officer personally, then suit is "individual capacity" c) "The Judicial Power of the United States" i) US Supreme Court is Not Restricted by the 11th Amendment i. SCt clearly possesses the judicial power of the US, as that term is used elsewhere in the Constitution: Art. III ii) State Courts Are Restricted Based on Eighth Amendment Concepts i. Alden v. Maine- Court grappled w/ question of whether Congress, in the exercise of one of its Art. I powers, can subject a non-consenting state to a suit brought by private plaintiffs in the state's own courts. In concluding Congress could not, SCt relied on sovereign immunity principles: 1. 11thAd speaks only of restriction on "the judicial Power of the US" and Alden did not suggest that state courts are literally encompassed in that phrase. 2. Not precisely true that Court ruled that 11th Ad applies in state court, but is practical effect of Court's ruling, bc Court determined that 11thAd reflects understanding that states should not be subjected to liability for violating federal law in any forum -- including in state courts. 3. Facts: State probation officers sued for overtime pay, alleging that state had failed to comply with a federal statute, Fair Labor Standards Act. State agreed to make prospective change in wage payments, but refused to pay retroactive overtime. Probation officers sought those retroactive payments in state court, and the state asserted sovereign immunity. 4. In upholding federal sovereign immunity defense, SCt held that US constitution anchors states' sovereign immunity, which is n "defeasible by federal statute." 5. Also, Ct explained that state immunity from private lawsuits was "so well established" at the time the states ratified the Constitution "that no one conceived it would altered by the new Constitution. iii) Federal Administrative Agencies Are Restricted Because they are not Art. III Courts i. Fed. Maritime Comm'n - private plaintiffs cannot sue states in federal administrative agency proceedings that are "functional equivalents" of Art. III federal courts ii. Katz - bankruptcy courts not restricted - SCt held that sovereign immunity principles did not bar BC proceeding against state agency to set aside alleged preferential transfers made to the agency. 3) Consent/Waiver a) Consent/Waiver a) Unlike most concepts that regulate "the Judicial power of the US", Eleventh Amendment may be waived. i) In this way, 11thAd bar is different from traditional SMJ restrictions b) SCt has tailored rigorous standard for waiver, that protects states from unintended or unconsidered waiver. i) Edelman - Waiver is accomplished only "by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction" ii) Similar to obligation of clarity imposed on Congress when it desires to abrogate 11thAd bar. c) Pennhurst - State's decision to waive sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in federal courts. i) Where a state expressly waives sovereign immunity over a state law claim in state courts and then removes the case to federal court, the removal amounts to waiver of protection in the federal court as well. ii) A state may also expressly waive 11thAd protection in context of litigation filed in federal court in the first instance or by state statute. d) Most Common Context: State Receives Federal Funds Conditioned on Waiver i) Courts find that waiver occurs when state receives federal funds subject to condition that they consent to suit. a. Generally occurs when Congress creates a federal program and grants funds to states under its spending power, but requires states to consent to suit for alleged violations of the program's requirements. b. In this context, Congress acts pursuant to Constitution's Spending Clause in Art. I 8, which provides that "the Congress shall have Power...to pay the Debts and provide for the common Defence and general Welfare of the US" c. SCt has said that Congress' decision that spending promotes "the general welfare" is entitled to substantial deference. ii) Nevertheless, where Congress qualifies the grant of funds to states upon compliance with certain conditions like consent to federal suit, SCt has established that: a. Congress must express the conditions unambiguously, and b. Conditions must relate to purpose of the federal program being funded. c. Lower courts have developed an implied waiver theory on basis of this precedent. iii) Court struggled with the basic question of whether state participation in federal regulatory programs meant the states have consented to being sued when they dont comply with the federal laws governing that program. iv) But the Court has said over and over again that this is NOT enough to constitute consent. v) The Court here likens consent to waive sovereign immunity and agree to being sued in federal court to a
v) The Court here likens consent to waive sovereign immunity and agree to being sued in federal court to a right of the state that it will be strongly presumed to have chosen not to waive. vi) Consent / waiver is a very high standard to meet, and the state has to directly say (either through state statute or the state attorney generals answer to a complaintnote that political forces will be at work here) we consent to being sued in federal court for money damages. vii) Leave out any part of that assertion and the state will be presumed to not have consented to waiver. e) What if a state only consents to suit in its own state courts but then, after losing at the states supreme court, appeals to the United States Supreme Court? i) SCOTUS would of course have appellate jurisdiction here and so stated on page 1068. This is totally consistent with federalism principles, supremacy, etc. f) Who controls whether the state gives consent? i) The voters of the state (the people) do! ii) Most states vote for waiver but also vote for a cap on damages that can be awarded. iii) And the press can put pressure on the governor / AG to waive in a really heart-wrenching case. iv) Voters can pass consent statutes. g) This exception supports state autonomy. h) And the Court treats it like an individual rightcan only be waived intentionally and knowingly by the State 4) CONGRESSIONAL ABROGATION a) Key Points a) Congress has changed 11thAd landscape by enacting explicit rights of action allowing private plaintiffs to sue states in federal court b) Congress has regulated both aspects of national economy and private social life: i) Schemes designed to eradicate institutional discrimination on the basis of religion, disability, race and sex ii) Notion: Congress not only has identified federal right that needs to be protected with specific legislation but also has determined that private enforcement mechanism is needed to ensure that rights are meaningful. (civil actions between private citizens and states are needed to supplement what enforcement federal government can afford. ) c) Q: Whether Congress intended to suspend the Eleventh Amendment, overriding the Amendment's bar to suit. b) Fourteenth Amendment Abrogation: How do we know if a law is a valid exercise of Congresss 14th A Sec. 5 powers? a) Is there a Right? First, we have to know what the right is. Look to Court for this question.. i) Fitzpatrick - SCt ruled that Congress may abrogate 11thAd when it legislates to enforce the provisions of the 14thAd pursuant to power granted in Section 5. a. By its terms, restricts state power; Section 5 gives Congress "muscle" to fulfill Amendment's promise to protect citizens from abusive state power, stating that, "the Congress shall have power to enforce, by appropriate legislation, the provisions of this article" b. Ct reasoned because14thAd was intended to limit state sovereignty, Congress possessed power in fashioning "appropriate legislation" under Section 5 to "provide for private suits against States or state officials which are unconstitutionally impermissible in other contexts. b) Clear Intent: Court has insisted that Congress present clear intent to abrogate in unmistakable terms. i) Designed to protect states, clarity requirement seeks to ensure that reps in Congress are on notice when legislation intends to authorize private suits for damages against states in federal court. In that event, political safeguards will ensure that abrogation was well considered. c) Congruent and Proportional Third, Congresss attempt to abrogate state sovereign immunity must be congruent and proportional to the problem Congress seeks to solve. i. What does Congruent and Proportional mean? a. Recall that the 14th A protects both fundamental rights (Due Process) and people (Equal Protection). 1. We know that at some point rights under DP Clause are so important that they are subject to heightened scrutiny (SS or IS). Otherwise, rights are below the line and receive only rational basis review. At a minimum, laws affecting rights have to be rational. Note also that because of procedural due process, laws affecting even non-fundamental (e.g., statutory) rights can be subjected to heightened scrutiny because of the unconstitutionality of the procedures. 2. Similarly, some classifications have to meet SS under EP Clause (e.g., race, religion, etc.), some have to meet IS (sex/gender), and the rest need only meet RB (e.g., age, disability, economic class, etc.). 3. Note that when a law falls under both DP and EP, and when the applicable standards of review are different, it only makes sense to apply the higher standard of review. 1. Otherwise, rights would lose their teeth when a law infringes an additional right. 2. Makes no sense! E.g., a law says no minor child can have an abortion. DP = abortion (IS), and EP = age (RB). 3. The law should be subject to IS! The higher level of review HAS to apply! b. When do I think it would be appropriate, given our values (esp. individual liberties and federalism), for Congress to come in and try to enforce the above paradigm? 1. When are the States most likely to get it wrong? When fundamental rights are at stake!
d)
e) f)
g)
h)
1. When are the States most likely to get it wrong? When fundamental rights are at stake! 2. When are states most likely to get it right? When RB review applies! 1. The higher the level of review, the harder it will be for states to meet their burden and, on average, the more often states will fail to meet it. 2. The harder it is to pass a constitutional law, the more Congressional oversight that will be needed to make sure constitutional rights are enforced. 3. Its very hard to argue that states are infringing non-fundamental rights severely enough to merit congressional oversight. Its rare that states pass irrational laws, and when they do, the problem is rarely ever systematic. 4. For Congress to use its enforcement power to come down hard on states for merely RB rights represents a big mistrust of the states and thus implicates the value of federalism quite severely. Congress needs a darned good reason to embarrass the states and impose its supervision upon them in such cases. c. Analysis 1. Federal RFRA, as applied to state laws, is unconstitutional. 2. RFRA looked to reverse Scalias gutting of the Free Exercise Clause in Smith and was passed pursuant to 14th A Sec. 5. Here, SCOTUS holds that, as applied to state laws, federal RFRA exceeds scope of 14th A, Sec. 5 powers. 3. The Court is very angry. 1. The Court had already defined the scope of the 1st A in Smith, and Congress cannot change that interpretation. 2. Under its non-abrogation powers, Congress can give more protection for religious freedom (which is why RFRA, as applied to federal laws, is constitutional as an exercise of Commerce power), and it has done so. 3. But it cannot enforce what is in essence only a statutory right against the states using its abrogation powers. d. Congress can give us, as federal citizens, more than is constitutionally required and tie the hands of the federal government more tightly than constitutionally required. 1. The states can give us more than constitutionally required via statute or state constitution. 2. But Congress may NOT violate federalism by forcing the states under 14th Amendment Sec. 5 to give us more than the 14th Amendment requires. College Savings and Florida Prepaid i. Abrogating state sovereignty is a big deal. i. It concerns not merely the 11th A, but more fundamentally, the essential postulates of our Federal Constitution (i.e., the structural features of federalism embedded in the Constitution). 1. A large justification is needed to abrogate state sovereign immunity with respect to merely non-fundamental, RB rights! 2. The abuse has to be systematic for Congress to meet the congruence and proportionality test! ii. The more important the right, or the more heinous the discrimination, the easier it is for Congress to meet the congruence and proportionality test and abrogate state sovereign immunity. 1. We see this play out in the cases. Kimel, Garrett i. Congress cannot abrogate with respect to disability discrimination (EPRB) on a non-fundamental (statutory) right. Lane i. Congress CAN abrogate with respect to disability discrimination (EPRB) on a fundamental DP right. ii. The more important the right, or the more heinous the discrimination, the easier it is for Congress to meet the congruence and proportionality test and abrogate state sovereign immunity. i. Easier for Congress to abrogate because harder for the states to pass a constitutional law. iii. Congresss prophylactic power under 14th A, Sec. 5 to sweep broadly in its protection of 14th A rights is larger when more important rights or classifications are at stake. Hibbs i. Question: Given that 14th A is as much about federalism as it is about individual liberties, can Congress draw a line between states and abrogate only the sovereign immunity of the more ill-behaved states? i. Hypo: Congress observes that States A, B, C, D, and E have engaged in systematic racial discrimination, but none of the remaining 40 states have. Congress passes legislation under its 14th A, Sec. 5 powers clearly abrogating the sovereign immunity only of the 5 bad states for race discrimination. 1. What about if a plaintiff suffers unconstitutional race discrimination in state F? 2. Plaintiff cant go to federal court to get money damages unless state consents!!! 3. And similarly, plaintiff cant sue in state court unless state consents! ii. The way to avoid the problems in this hypo is for Congress to pass abrogation legislation that applies to ALL the states across the board. 1. But can Congress meet the congruence and proportionality test when only 5 states are being bad? 2. This is the central issue here. Can Congress meet the congruence and proportionality test by saying We, Congress, using our 14th
h) Can Congress meet the congruence and proportionality test by saying We, Congress, using our 14th Amendment Sec. 5 powers, intend to abrogate state sovereign immunity with respect to all money damages claims where plaintiffs have suffered an actual violation of their 14th Amendment rights? i. The problem with this statute is that Congress is essentially saying that federal courts have subject matter jurisdiction over only those claims where plaintiffs eventually prevail on the merits. i. But jurisdictional questions are supposed to be resolved before reaching the merits! ii. Federal courts will decide the case on the merits, then decide whether they had subject matter jurisdiction to decide the case on the merits? ii. This problem shows how the 14th Amendment is NOT self-executing with respect to money damages. i. Recall that Young always allows prospective injunctive relief. J iii. This also shows how the congruence and proportionality test could be rendered meaningless. i. If this type of legislation were ok, then we wouldnt ever have to worry about the congruence and proportionality test. ii. Congress could simply abrogate whenever there has been an actual constitutional violation. iv. From our Georgia wheelchair prisoner case (claiming not only violation of Americans with Disabilities Act, but also of 8th Amendment), it looks like the Court is telling us that this type of legislation is ok!!!!! i. This is still a developing area of law. Realize that a lot of these cases come out 5-4. ii. Realize that discrimination on basis of disability only gets RB review under 14th A EP Clauseonly right to be free from irrational discrimination. iii. Here, the Court said there is no doubt about Congresss power to abrogate state sovereignty where violation of the ADA amounts to an actual constitutional violation. 1. You can sue a state for money damages for an ADA violation if that violation amounts to a constitutional violation. 2. When theres an actual violation of the constitution and Congress has said you can sue the state, and all Congress is doing is enforcing the 14th Amendment, Congress can abrogate!!! Even Scalia agrees!!! i) Note: Clear intent to abrogate is not normally an issue, but it is with 42 U.S.C. Sec. 1983 j) Generally One. Like consent / waiver, abrogation applies to $$ damages Two. Congress can NOT use its Commerce Clause power to abrogate state sovereign immunity (a limit imposed by the pro-federalism Rehnquist Court in Seminole Tribe). Three. Congressional abrogation of state sovereign immunity = Congressional regulation of the subject matter jurisdiction of the Article III courts!!! c) Fitzpatrick d) Seminole Tribe i) Congress passed an act governing how the states would relate to Indian tribes with respect to gambling operations. If the relationship breaks down, the act commands the governor to negotiate with the tribe in good faith. i. Here, the Seminoles sue in federal court, alleging the governor of Florida isnt negotiating in good faith and is not complying with the federal statute. This looks exactly like Young! Here, plaintiffs go to federal court and ask it to perform its essential function. ii) Young is inapplicable, says the Court, because the regulatory scheme did NOT provide for the possibility that the tribes could go to federal court to obtain an injunction. i. The Act says that they can go to the Secretary of the Interior to negotiate under the Act. iii) Statutory construction: i. A congressional remedial scheme that does not explicitly say plaintiffs can get prospective injunctive relief against state officials will be read to preclude it. ii. Expressio unius canon applied in these circumstances to effectuate the presumed intent of Congress to protect federalism and steer clear of 11th A concerns, even when the outer bounds of Congresss authority encompass the ability to grant Young relief. iv) The Courts rationale for Seminole Tribe rests on structural federalism principles! Basic federalism! i. Congress can regulate the Native Americans, but it cannot abrogate state sovereign immunity, under its Commerce Clause. ii. State sovereign immunity is an essential postulate of the constitutional design. iii. This decision is totally consistent with the Rehnquist Courts return to first principles and federalism. iv. Refers to this decision as an essential postulate of our constitutional design. v) Its NOT that Young is unavailable constitutionally here, but rather only that Congress is said to have intended to preclude Young relief. i. If the Secretary refuses to pick up the phone and grant the relief available under the statute, the tribes can lobby Congress to amend the statute to clearly provide for Young relief. The ball is ultimately in Congresss court here. ii. Counterpoint: Young is such an important exception to the 11th A, so we might have reason to presumeCongress means to provide Young relief (to protect Supremacy) even when it doesnt say so explicitly. iii. Counter-counter point: Well, now Congress is on notice and will clearly express its intent from now on. Score a point for federalism AND a point for Separation of Powers! The court is merely telling Congress, Here, this is your job. And thus this issue is ultimately left to the voters. Score a point for democracy!!! vi) Seminole Tribe Abrogation: 2-Part Test
vi) Seminole Tribe Abrogation: 2-Part Test a. Clear Congressional intent to abrogate state sovereign immunity in the statute i. Note that this is almost NEVER the issue. Congress usually speaks very clearly to this issue in its abrogation statutes. ii. Exception: this IS the biggest issue in 42 U.S.C. Sec. 1983! b. The statute is valid i. Note that Congress cannot abrogate state sovereign immunity under the Commerce Clause, even as expanded by the Necessary and Proper Clause. a. Alden v. Maine (pg. 1076) i. Probation officers in ME suing under the Fair Labor Standards Act, claiming that the state owed them overtime. They filed during the time that Seminole Tribe was making its way up to the Supreme Court. The plaintiffs filed in state court, thinking How could the 11th A possibly apply in state court??? ii. What could possibly justify a reading of the 11th A that plaintiffs cannot sue a state for money damages in state court??? iii. Now we have to modify the rule! Not only is the general rule that you cannot sue a state in federal court, but also that you cannot sue a state in state court! No suits against states in federal court OR state courts! iv. If the rationale behind Seminole Tribe is that state sovereign immunity is an essential part of our constitutional design, then it makes sense that Congress can never, under any circumstance, use its Commerce Clause power to abrogate (or force states to waive) state sovereign immunity. v. This is a broad ruling based on federalism principles. But it seems like it will place supremacy in danger. This makes the Young exception even MORE important! This is why its important for Congress, in any regulatory regime passed under the Commerce Clause, for it to clearly include Young relief. If Congress does not, the supremacy of federal law is threatened!!! vi. Here, the Court is no longer construing the 11th Amendment, but rather construing the Constitutions overall structure. i) If state sovereign immunity is an essential part of the constitutional structure, then the Court has rendered the 11th A superfluous! Who needs the 11th A when you have the 10th A??? If this is the case, the Court took its first wrong step in Chisholm. ii) Notwithstanding the lack of the 11th A, the Chisholm Court should have decided on structural constitutional grounds that the states had sovereign immunity. iii) Here, the Court is saying that the Court got it WRONG in Chisholm. If this is the case, then the 11th A is unnecessary. iv) State sovereign immunity was an essential postulate of the Constitution before the 11th A, and the 11th A was never needed to assert that fact. We already had structural limitations on Congresss power and the 10th A, and nothing else was needed. vii. At the bottom of pg. 1079, the Court essentially says: The states are part of the constitutional design and part of their function is to protect the supremacy of the federal constitution and federal statutes. i) It is not just the Article III courts who are charged with safeguarding the supremacy of federal law. And we trust them to do that! viii. Moreover, alternatives are available. i) Suits can be brought against states in federal court with their consent, other states (and even the federal government) can bring suits, suits can be brought to enforce the 14th A, suits can be brought against municipalities and local governments, suits can be brought based on the Young exception, and suits can be brought under Sec. 1983 against state officers. ix. The Court has never explicitly overruled Chisholm, and it probably never will. But the modern Courts disagreement with Chisholm is painfully apparent. x. This entire jurisprudential shift from Chisholm to Alden is based on TRUST. We can TRUST the states to do whats right. And we should trust the states. Trust them to provide wrongful death actionsno need to make things a constitutional tort! If they violate the Fair Labor Standards Act, trust the states to make it right and voluntarily correct their Etc. xi. This decision rejects the assumption that where there is a wrong, there must be a remedy. i) With several exceptions (e.g., 14th A), Article III courts should leave it up to the states to determine whether there will be a remedy against them, and this deference to the states arises not out of the 11th A, but rather out of the Constitutions overall structure and design. ii) The essential postulates of federalism built into our Constitution! xii. Here, we see how federalism is in competition with individual liberties, and were looking for the right balance. i) One way of looking at how the Court has chosen to balance these values is the observation that the Commerce Clause, which can create only statutory rights, cannot abrogate state sovereign immunity, but 14th A Sec. 5, which enforces constitutional rights, DOES abrogate state sovereign immunity. xiii. When should a plaintiff be able to go to a federal court and get money damages against the state? i) Congresss most expansive powers are the Commerce Clause / Necessary and Proper Clause, and Section 5 of the 14th A. ii) These are possible sources of Congresss power to abrogate state sovereign immunity. iii) When does Congress have this power = an easy question. iv) When should Congress have this power = the tough question here! xiv. Congress can abrogate state sovereign immunity with its 14th A, Section 5 powers. But it can NOT do so with its Commerce Clause powers.
b.
c.
d.
e. f.
Commerce Clause powers. i) The irony here is that Congress can impose fines on individual people under the Commerce Clause but cannot due so (absent state consent) on the states. ii) This is in many ways what Seminole Tribe was all about. iii) For a while, the Court struggled with the issue of whether state participation in interstate commerce = consent to waive sovereign immunity. iv) But in Seminole Tribe the Court emphatically said that it does not. And it also clearly said that the Commerce Clause is NOT a source of Congresss abrogation power. Therefore, Section 5 of the 14th A is the only source of Congresss power to abrogate state sovereign immunity. College Savings Bank i. Section 5 of the 14th Amendment i) The other possible source of Congresss power to abrogate state sovereign immunity ii) Arose because the states had violated the trust relationship that existed before the Civil War. We could no longer trust the states to respect fundamental rights. iii) Congress has the power to enforce, by appropriate legislation, the provisions of [the 14th Amendment]. Fed. Maritime Comm and Katz i. Congress can only use its 14th A, Section 5 Commerce Clause powers to abrogate state sovereign immunity ii. Can NOT abrogate using Commerce Clause power EXCEPT with regard to bankruptcy Flores i. For Congress to legislate pursuant to Sec. 5 of the 14th A, there has to be a 14th A right to enforce in the first place! i) If theres no right, theres no enforcement power. ii) Congress doesnt have the power to create 14th A rights! iii) Can only enforce the rights that the Court recognizes! ii. And even then, the law has to be congruent and proportional. i) The congruence and proportionality testmeant to keep the law from becoming substantive in effect (i.e. meant to keep the law from creating, rather than merely enforcing, rights). a. How great is the harm, and how widespread of a problem is it? b. If not very great and not very widespread, might not be able to pass an abrogation statute. ii) It is VERY hard to imagine a facially neutral, generally-applicable state law that would be a serious and systematic enough problem to meet this test. Generally speaking, states are not acting irrationally. a. Congress has NEVER had any luck meeting this test with rights that get only rational basis review. b. Question: Can Congress abrogate state sovereign immunity with respect to discrimination on the basis of sexual orientation? iii. This case is a strong federalism case and stands for the proposition that Congress cannot enforce extraconstitutional, statutory rights against the states under Sec. 5 of the 14th A. i) But the states themselves can give us more, and in fact, they did in the wake of Flores by enacting their own RFRAs, broadly construing state religious freedom provisions, etc.!!! ii) Interesting note: Congress has power under the Commerce Clause to protect religious freedom from private conduct a la Civil Rights Act (and also from the application of federal laws a la RFRA), but does NOT have the 14th A Sec. 5 power to protect religious freedom beyond what the 14th A requires! One. Ironic that Congress can control private, but not state, conduct here. iv. Section 5 of the 14th Amendment says Congress may enforce the 14 th Amendment. i) The Court in Flores began to interpret Section 5. ii) Also in Flores, the Court said it was the ultimate arbiter of the scope of the rights embedded in the 14 th Amendment, NOT Congress. v. A right consists not only of the right, but also the standard of review. i) Congress cannot change Free Exercise + Rational Basis to Free Exercise + Strict Scrutiny. Realize that Congress could, for example, enact a law pursuant to its Commerce Clause legislation that hold private citizens to standards higher than those Congress may impose on the States through its 14th A Sec. 5 powers. Congruence and Proportionality Hypo: Does Congress have the power to abrogate state sovereign immunity with respect to sexual orientation discrimination claims for money damages? 1. Is there a right? i. Flores tells us that the Court, and NOT Congress, will define the right. What is the right, according to the Supreme Court? The right to be free from irrational discrimination (cite Romer and Lawrence). ii. Important note: Realize that without Romer and Larence, the Court would never have spoken on the right. Congress might still have chosen to interpret the 14th Amendment right itself, enact an abrogation statute, and hope the Court will, post-enactment, ratify Congresss interpretation by rejecting a challenge to the abrogation statute. If the Court is silent and Congress acts, theoretically the Court could define the right by upholding the congressional statute (and thus agreeing with Congresss interpretation of the 14th Amendment). Flores does not foreclose entirely the possibility of Congresss participation in the interpretation of the 14th Amendment. Flores stands for the proposition that the Court is the ultimate, but not necessarily the only, arbiter of the meaning of the 14th Amendment. 2. What is the right? How do we characterize it? i. EP side may be a loser: The right to be free from irrational discrimination (cite Romer [EP caseRB with teethCourt said law was irrational]. But see Lawrence [SDP right to privacyunclear standard of review, but Court said law was irrational]). ii. If Congress can characterize it as the right to be free from sexual orientation + IS or SS, abrogation will likely be
ii. If Congress can characterize it as the right to be free from sexual orientation + IS or SS, abrogation will likely be valid. If Congress wants it to be valid, should characterize the right as something that will get heightened scrutiny. Then itll be easier for Congress to abrogate. If RB applies, Congress will have heavy burden to show widespread irrational discrimination. iii. BUT, if you dont want Congress to have the power to abrogate, characterize the right as merely a RB right without widespread / systematic violation. 3. How severe / widespread is the constitutional violation Congress is hoping to remedy? i. If RB review applies: a. If you want Congress to succeed, argue that although sexual orientation discrimination only gets RB review, there is widespread irrational discrimination. In the cases that have hit the Court, both state laws have proven irrational. b. If you do NOT want Congress to succeed, come up with a law (or several laws) that discriminate rationally on the basis of sexual orientation. ii. If IS or SS applied? a. If you want Congress to succeed, pretty easy. Youre already 90% of the way there. Probably dont need b. If you do NOT want Congress to succeed, pretty hard. 4. Congress might skip all these steps by enacting a specific (as opposed to broad) abrogation statute that says people can sue for money damages if there has been an actual 14th Amendment violation. (A) We might say as a matter of normative analysis that this would be really bad for state sovereignty and state treasuries. (B) But we might respond that it is more important for Congress to remedy constitutional violations, even if states arent going wild with systematic violations. a. And if the violations are only sporadic and isolated, then it really wont be that much of an intrusion into state sovereignty. (C) Response: Is IS a big intrusion into state sovereignty. a. The mere fact of entrusting state action to federal court review intrudes on the power of the states. b. Plus, abrogation statutes will lead to a flood of litigation, and even if plaintiffs rarely prevail, the mere volume of litigation before Article III judges will impair state sovereignty. c. Plus the states will have to pay for all that litigation! d. That $$ will come from the state treasuries! (D) Response: Justice Scalia said that no one doubts the ability of Congress to prevent actual constitutional violations. a. He thinks the congruence and proportionality test is flabby. (E) Realize that Congress will never enact this type of statute. a. We already have 42 U.S.C. Sec. 1983, which does NOT abrogate state sovereign immunity because it allows money damages suits only against people (officials, municipalities, etc.), NOT states. b. The 11th Amendment does NOT apply to people! It only applies to states!!! g. Ultimate question: 1. Does this framework allow the federal courts to perform their essential functions? 1. Flores v. Seminole Tribe: Interaction Between Eleventh and Fourteenth Amendments 1. (Sem. Tribe) 11th Ad - no abrogation under commerce clause, Flores 14th Ad.- Congress must satisfy rigorous "congruence and proportionality test" 2. Seminole Tribe decision has had one certain ramification: it heightened the importance of the Fourteenth Amendment as a power base for Congress to authorize federal courts to supervise states and state officers. 3. Starting with Flores, however, SCt made it more difficult for Congress to justify appropriate legislation under 14thAd i. Facts: SCt condemned Congress for extending legal rights beyond those defined by SCT in constitutional litigation. ii. Also declared that Congress must narrowly tailor its laws to eliminate constitutional violations: a) In the Court's view, laws must reflect congruence and proportionality i. Congruence - Congress must identify specific constitutional violations that laws remedy ii. Proportionality - Congress must carefully tailor the laws to remedy the violations identified. iii. In application, Cts tend to conflate terms, focusing primarily on whether Congress has sufficiently tailored its statute to remedy specific violations. b) After Flores, Congress carried a heavy burden in justifying 14thAd Legislation - just as Seminole Tribe channeled Congress' effortrs into 14thAd legislation, Flores effectively sabotaged these efforts, resulting in severe reduction of circumstances in which Congress can regulate the states using private civil actions. c) Although Congress may have clearly intended to use 14thAd to abrogate 11thAd bar, legislation nonetheless flunked "congruence and proportionality" test and therefore inadequate to authorize private civil lawsuits in federal court. i. When legislation violated congruence and proportionality, Court repeatedly found that legislative records did not reflect a pattern of state violations justifying federal intervention. ii. In those instances where Congress extended legal protections beyond constitutional protections recognized by the SCt, Court applied c and p test with particular vigor. iii. Kimel- Ct evaluated whether Congress acted approprately in applying the Age Discrimination in Employment Act to state and local governments. (A) Concluding that "the substantive requirements that the ADEA imposes on state and local govts are disproportionate to any unconstitutional conduct that conceivably could be targeted; Ct found that ADEA
disproportionate to any unconstitutional conduct that conceivably could be targeted; Ct found that ADEA did not pass "congruence and proportionality" test. (B) Specifically, Ct declared that Congress' extension of ADEA to "the States was an unwarranted response to a perhaps inconsequential problem." iv. Garrett - pursuing similarly vigorous scrutiny of Congressional findings, Ct invalidated portions of ADA that empowered disabled persons to sue states for employment discrimination. (A) In considering Congress' abrogation of state sovereign immunity, Ct observed that disabled do not constitute a suspect class for purposes of strict scrutiny under 14thAd equal protection analysis. (B) To justify abrogation, Ct reasoned, Congress would have had to conclude that states engaged in an irrational pattern of discrimination against individuals that was so pervasive as to justify remedial legislation under the 14thAd; determined that Congress had identified no such pattern. 1. SCt has upheld abrogation legislation in limited circumstances i. Hibbs - Ct upheld abrogation scheme even where Congress had prohibited more conduct than the US Constitution condemned. (A) SCt upheld FLMA's application to a state employer. (B) Ct noted that issue of family leave was linked to 14thAd's prohibition against sex discrimination, thereby identifying a constitutional toehold for act's abrogation of Eleventh Ad protection (C) While act protected more discrimination than Constitution, Hibbs Ct regarded this as appropriate "prophylactic" legislation" protecting both men and women ii. Lane - SCt upheld Congress' abrogation of 11thAd in Title III of ADA where state's misconduct also violated the Constitution. iii. US v. Georgia - CT explained that determination of whether abrogation is effective must be evaluated on "claim by claim" basis (A) Ct noted "insofar as Title II of ADA creates a private c/o/a for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity. (B) Ct suggested that abrogation could possibly be valid even if misconduct violated ADA but not 14thAd, but did not provide standards for analyzing that situation. iv. Cases suggest that Ct's scrutiny of legislation is less rigorous where terms of Congress' prohibitions are coextensive with those of the Constitution. v. While Ct has shown willingness to allow abrogation in other instances, has been much more inclined to uphold abrogation where Congress' legislation provides a remedy for violations that are already recognized in or consistent with the SCt's constitutional jurisprudence. a) Commerce Clause a) Penn. - fragile alliance of Justices concluded that Congress had power to abrogate when legislating under Commerce Clause. b) Seminole Tribe - switched position from Penn. i) Founded in sovereign immunity theory - Commerce Clause is on different footing than 14th Ad since 14th Ad could be read as modifying assumptions reflected in 11th Ad. ii) Moreover, since 14thAd realigned state and federal relations, the Ad is not par of original constitutional scheme guaranteeing states protection from involuntary private lawsuits for damages. iii) But see Katz - notable for recognizing that a provision other than the 14thAd may eliminate or qualify the states' sovereign immunity in private civil actions.
B. 1983 Actions: Suing Local Governments and State and Local Officials i. Introduction and History a. 1983 is a "cause of action" statute which allows plaintiffs to seek remedies for federal wrongs in state or federal court. b. 1983 is key to crucial federal court function: review of alleged state and local violations of federal law. a. SCt: Congress enacted 1983 in order to "interpose the federal courts between the States and the people, as guardians of the people's federal rights. c. 1983 works in tandem with 11thAd in governing the manner in which federal courts may supervise state officials a. 11thAd does not restrict suits against local governments and local officials b. Thus, for plaintiffs suffering injury at hands of local governments and officials, main obstacle to relief comes in form of restrictive interpretations of 1983's components. d. Provides vehicle for overwhelming number of federal court rulings on constitutional issues tha arise as a result of state or local official action; 1983 cases account for huge portion of federal court docket a. To the extent that 1983is read expansively, the federal courts have more to do, the balance of power shifts away from state and local governments b. If 1983 is read narrowly, federal court docket becomes lighter and power shifts back to state and local governments. ii. Statutory Language a. "Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or Territory or the District of Columbia, 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" b. SCt's interpretation a. Drawn on values present in other portions of federal court jurisprudence b. Used 1983 cases to debate conflicting models of government, with differing views of state sovereignty and
b. Used 1983 cases to debate conflicting models of government, with differing views of state sovereignty and protection of federal rights featured prominently in justifying divergent approaches. c. Q of parity between state and federal courts i. Those justices who believe that state and federal courts are equal in their willingness and ability to apply federal law tend to read 1983 restrictively ii. Those who view federal courts as more inclined to interpret federal law carefully and apply it vigorously tend to champion importance of statute, reading it broadly. iii. Key Components a. "Person"
Entity Barrier to being 1983 "Person" Federal Immunity Doctrine Indemnity Prospectiv Procedure e Remedy s Available? Retrospective Remedy Available?
State
Municipality State Officers: Official Capacity Personal Capacity
Absolute barrier, no liability

Officials must be acting pursuant to law, custom or policy Prospective Relief Only No barrier
Eleventh Amendment n/a

No n/a Qualified and Absolute immunity n/a n/a Maybe
No
Yes Yes Yes
No
Yes No Yes
Municipal Officers: Official Capacity

Personal Capacity
Must be acting pursuant to law, custom, or policy

No barrier
n/a
Qualified and absolute immunity
n/a
Maybe
Yes
Yes
Yes
Ye
A. Overview i. 1983 provides cause of action against "every person" who violates federal constitutional rights and statutory rights under color of state law. ii. SCt has been very specific about who is a "person" under 1983; viewed in a vacuum, person requirement seems oddly tortuous and complicated iii. Remember that SCt has interpreted 1983's scope against 11thAd background, which prevents courts from entertaining suits against government and governmental officials under many circumstances. iv. Since 1983 provides a vehicle for challenging governmental action, Ct is appropriately coordinating two lines of doctrine; interweaving 11thAd concepts with 1983 B. State Governments i. Will v. Michigan - States are not persons for 1983 purposes (A) Ct could not find that Congress "intended to disregard the well-established immunity of a State from being sued without its consent" ii. Sanchez - Congress' inclusion of territories in 1983 did not make them directly liable, but rather meant that they should be treated as states; thus territories are also not person for 1983 purposes. C. Municipalities i. Monell - plaintiffs may bring 1983 suits against local governments for damages, or declaratory or injunctive relief, for an action taken pursuant to a policy or custom of the municipality. (A) Specifically, SCt stated that local governments could be sued for actions that: a. implement or execute "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or b. that occur "pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decision-making channels. (B) 1983 liability is available against municipal officers for prospective (injunctive and declaratory) relief a. For that reason, allowing 1983 liability against municipalities for such relief makes little practical difference to a plaintiff trying to remedy a wrong. What is significant is since immunity doctrines do not shield municipalities, Monell effectively authorizes suits against municipalities for damages, a remedy that is unavailable in actions against municipal officers. ii. Court eliminated liability for "random acts" of officials - no respondeat superior under 1983! iii. Ascertaining Law, Custom or Policy under Monell (A) Monell stands for proposition that 1983 plaintiff can get damages and other relief from municipal government only if the plaintiff can show that the government created a law or endorsed or officially acquiesced in a custom or policy that violated the plaintiff's federal rights. (B) If law comes in form of legislative enactment, a. Analysis is generally straightforward, since enactment speaks for itself b. Pembaur - "A single decision made by a properly constituted legislative body constitutes an act of official government policy." (C) In absence of official enactment: a. Praprotnik - In areas of doubt, state and local law controls the determination of who makes policy for the local government. (plurality opinion)
for the local government. (plurality opinion) b. Moreover, liability can arise not only from recognized customs or policies, but also from certain circumstances where a municipality does not, but should, have a custom or policy. iv. Recognized Customs or Policies (A) Absent legislative enactment; custom or policy can exist: a. Delegation Where legislative authority that is delegated to a municipal agency or board results in a generalized action; or 1. Monell - Ct held that regulations adopted by city department of Social Services and Board of Education requiring pregnant employees to take unpaid leaves and applied to specific individuals involved in official policy. b. Final Decision-Making Authority Figure Where individuals with final decision-making authority render an isolated decision that affects the plaintiff. 1. Pembaur - Ct held that county could be liable for single decision of a prosecutor authorizing law enforcement officers to make an unconstitutional entry into a doctor's clinic 2. Praprotnik - Plurality of SCt refused to hold a city liable for alleged First Ad violations that occurred when two senior supervisors dismissed a subordinate. 1. Plurality applied state law to conclude that only the mayor and other select officials had policymaking authority over personnel decisions, but ruled that none of those policymakers had adopted a policy that caused the objectionable dismissal. 2. Significantly, Ct concluded that policymakers' delegation of discretion to take employment action to the supervisors did not allow for municipal liability for the supervisors' conduct. 3. Test (Jett v. Dallas) 1. Judge should resolve first whether municipal employee taking action has final decisionmaking authority, taking into account specific state and local law as well as 'custom or usage' having the force of law" 2. Jury then decides whether actual policymakers' decisions "caused the deprivation of rights at issue by policies which affirmatively command that [the deprivation] occur...or by acquiescence in a longstanding practice or custom which constitutes the 'standard operating procedure' of the local governmental entity. 4. Brandt - finding no municipal liability arising from principal's actions with similar school district structure; 5. McMillan - Court held that county sheriff could not be a FDMA for the local government because he was a state official. c. Failure to Act 1. Q: When should liability attach for local governments who fail to provide a custom or policy in circumstances where prudence calls for one? 2. Common case type: "failure to train" LEOs 1. Canton v. Harris Test: 1. In order to demonstrate a policy of inadequate training, plaintiff must prove that local government acted with deliberate indifference, and the injury must have been caused by the inadequacy of the training program itself, not simply by the individual officer's mistake or indifference. 2. Refined further in Brown 1. Ct ruled that plaintiff must establish that municipality's deliberate indifference led to the risk that the particular injury suffered by the plaintiff would occur. 2. Ct required "rigorous standard of culpability and causation" for case, which involved claim that municipality had not adequately screened a police officer w/ violent propensities. 3. Explaining that a single instance of inadequate screening was not sufficient for liability, Ct added that liability would depend on a "finding that the officer was highly likely to inflict the particular injury suffered by the plaintiff." D. Individual Officers i. Overview (A) Ashcroft v. Iqbal - no respondeat superior for 1983 a. SCt declared that 1983plaintiffs may not sue supervisory officials for the actions of their subordinates. (B) Circumstances under which various officials are deemed 1983 "persons" depends on distinction between official capacity and individual capacity. (C) Official Capacity a. Plaintiff may name official as defendant, but government for whom official works will actually satisfy the judgment. Can involve: 1. Paying damages if judgment is a damages judgment or 2. Financing compliance with prospective relief if judgment is declaratory or injunctive (D) Individual Capacity a. Plaintiff proceeds as she would in private tort action; may have judgment satisfied if she can successfully navigate common law immunity doctrines and indemnification procedures protecting
successfully navigate common law immunity doctrines and indemnification procedures protecting the individuals. ii. State Officers (A) Will v. Michigan - SCt decided that states are not 1983 'persons' and that 1983 plaintiffs cannot sue state officials in their official capacity for damages. (B) Ct reasoned: "suit against state officer in his/her official capacity is not a suit against official but rather is a suit against official's office; as such, no different from suit against State itself." (C) Citing Young 11thAd decision, Will court made important exception: State officers are persons for 1983 when sued in their official capacity for prospective relief. (D) Using the Young fiction, a 1983 plaintiff can evade 1983 limitation preventing plaintiff from formally naming state as defendant. a. 11thAd doesn't regulate suits against state officers in their personal capacity since these suits seek personal liability against the officers. b. Personal capacity suits are however subject to defenses of immunity and indemnification. iii. Municipal Officers (A) Monell - municipal officers sued in their official capacity are 1983 persons in those cases where municipality could be sued in its own name. a. Allows plaintiffs to sue local governments for damages, declaratory judgments or injunctive relief for an action taken pursuant to a policy or custom of the municipality; so includes municipal officers sued in official capacity. b. Although officials may be subject to money damages for actions brought against them in official capacity, indemnification is not necessary because very definition of "official capacity" suit requires that municipal funds satisfy the judgment. (B) Personal capacity - subject to immunity doctrines and indemnification procedures E. Immunity Doctrines i. Overview (A) State and local sovereign immunity may protect from suit in state courts. (B) In federal court, it is federal court (embodied in 11thAd and case law) that governs entities' immunity (C) Eleventh Amendment does not protect local governments, and Sct has refused to recognize immunity for municipalities (Owen) a. Since municipalities are exposed to damage judgments as "persons" under 1983, SCt's decision not to grant them immunity protection renders them accessible to plaintiffs seeking civil rights remedies. (D) SCt created immunity doctrines protecting officials by federal common law. a. For state and municipal officers, official immunity doctrine is largely the same. b. The doctrines are also largely the same for federal officials accused of misconduct in the course of their employment. (E) Involves delicate balance: a. Imposing personal liability can help deter violations of federal rights and provide a remedy for injury 1. Injured parties might otherwise receive no remedy since government entities are shielded by their own forms of immunity. b. Personal liability can deter talented individuals from entering government service, thereby interfering with ability of state and local governments to meet citizens' needs. c. Fairness concerns - come into play when official caused injury while acting in good faith. d. Case law expresses concern with officials being required to expend energy and expense in defending lawsuits, which constitutes an expenditure of resources borne by "society as a whole" through indemnification and the "diversion of official energy from pressing public issues." (Harlow v. Fitzgerald) ii. Absolute Immunity (A) Limited to certain officials, construed narrowly by SCt a. To read immunity broadly would undermine purpose of 1983 (B) Focuses on official's function rather than officials' title. (C) SCt has recognized for individuals performing judicial and legislative functions a. Judges - extends neither to judicial acts that are clearly outside judge's jurisdiction nor to nonjudicial tasks. (administrative) b. Legislators - immunity shrouds acts that are central to deliberation and communication activities among members, but not other matters, such as issuing press releases. (D) Also for Police Officers and Prosecutors performing certain activities. a. Police officers enjoy absolute immunity from testimony they provide as witnesses, b. Prosecutors are absolutely immune when providing a variety of functions, most of which take place in court. iii. Qualified Immunity (A) To officers not performing functions entitled to absolute immunity, qualified immunity is available if officers are sued in personal capacity (B) Available in damages actions only, not in suits for prospective relief. (C) Most commonly arises in suits against executive officials, which include range of officials exercising
(C) Most commonly arises in suits against executive officials, which include range of officials exercising various degrees of power. (D) Leading Case: Harlow v. Fitzgerald a. Standard reflects Court's attempt to balance interest of private citizen in receiving compensation for harm done with governmental concern that officials be able to effectively serve the public interest without being unfairly and unnecessarily burdened by litigation and liability b. Depends on two conditions: 1. Whether an officer's challenged conduct occurred when the officer was exercising a discretionary function, and 2. Whether the challenged conduct is "objectively reasonable" c. Shields insofar as conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known d. Officer does not bear liability if "duties legitimately required action in which clearly established rights are not implicated" e. Exception: QI for an officer who violates clearly established law but "claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard" (emergency) (E) Clearly Established? a. Right can be CE by controlling authority in the jd where the conduct occurred or by "a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful" Wilson v. Layne b. Precedent need not specify that challenged conduct was unlawful, but must provide the officer with "fair warning" 1. Hope v. Pelzer - SCt rejected requirement that precedent present "materially similar" facts c. In some cases, "a general constitutional rule already identified in the decisional law" applies "with obvious clarity to the specific conduct in question," making QI unavailable even though conduct had not previously been unlawful. Hope v. Pelzer. b. Under Color of State Law a. Monroe v. Pape- important spark that prompted new interest in 1983 for civil rights plaintiffs in 1960s; Ct interpreted 1983 so as to make its c/o/a available to a wide range of plaintiffs injured by officials through expansive reading of "under color of " i. Facts: Thirteen Chicago police officers broke into the Monroe home in the early morning, routed them from bed, and made them stand naked in the living room and ransacked every room, emptying drawers and ripping mattress covers...Mr. Monroe was then taken to the police station where he was interrogated about a two-dayold murder...he was not taken before a magistrate although one was accessible, not permitted to call his family or attorney, and was subsequently released without charges pressed against him. ii. W facts this egregious, one would assume that offers were not acting pursuant to official departmental policy and that in fact Mr. Monroe himself might find that state law itself condemned officers' conduct . Ct explained: (A) "courts of Illinois are available to give petitioners that full redress which the common law affords for violence done to a person." iii. Observation established that Ct believed Congress wanted 1983 to provide a supplementary remedy -available even if state law provided a means of redress. (A) Supplementary nature is critical to meaning of "under color of" (B) If read meaning "acting in an officially sanctioned way," a. If state law remedy exists to "punish" an official's conduct, then the conduct could not have been officially sanctioned. b. The state remedy would not exist to punish the conduct if the conduct were consistent with official state policy. c. An official therefore would be acting "under color of" only if a state remedy did not exist. iv. But Monroe v. Pape Ct rejected such a narrow reading: (A) An official can be acting UCSL even though SL disapproves of the official's action and provides a remedy to redress injuries resulting from the action. (B) The official thus can act UCSL whether or not SL condemns the action. (C) The existence of a state remedy, which renders 1983 a supplementary remedy -- does not disqualify an official's actions from being characterized as UCSL. v. Monroe v. Pape Standard of UCSL (A) "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law. " (B) Includes actions by officers that cross the line of legitimate authority possessed by the officer (C) Does not include conduct that occurs in context of "purely personal pursuits" (D) Tracks concepts of state action used for triggering 14thAd protection (E) Definition also reminiscent of approach to "official capacity" suits under Young. vi. Frankfurter's Dissent (Federalism principles) (A) Congress intended 1983 not to be supplementary, but available only when federal courts are really needed. a. When states are either endorsing or turning a blind eye to misconduct (B) 1983 "created a civil liability enforceable in the federal courts only in instances of injury for which
(B) 1983 "created a civil liability enforceable in the federal courts only in instances of injury for which redress was barred in the state courts because some 'statute, ordinance, regulation, custom, or usage' sanctioned the grievance complained of " (C) Although conduct did not need to be officially endorsed to merit federal intervention, Frankfurter would require that plaintiff at least make a showing that the conduct occurred as part of a settled state practice -- e.g. a custom or policy. (D) Reflects his view of state courts: they should be trusted to handle illegality. Federal courts should be called in only where some evidence exists that state courts are not adequately guarding principles of justice. (E) View therefore takes position on parity debate - doctrine should presume state courts to be willing and able to protect rights unless a litigant can show the contrary. vii. Majority emphasized legislative history, evincing distrust of state courts in concluding that federal courts should always be available where a plaintiff is able to frame her injuries from official misconduct in terms of a federal law violation. viii. Frankfurter's position is significant because it has informed subsequent interpretations of 1983 clauses (A) Although he lost the battle over defining UCSL, position has paved the way for effective inroads into "winning the war" of restricting 1983 to circumstances where officials act pursuant to a specific law or a custom or policy of the governmental body the official represents. b. Exhaustion of State Remedies is Irrelevant for 1983 i. Monroe: 1983 is available even if state remedies may also be effective in remedying federal law violation. ii. Stands for proposition that civil rights plaintiff need not exhaust state court remedies before filing 1983 action in federal court. c. Deprivation of any Rights, Privileges or Immunities Secured by the Constitution and Laws a. One must identify which rights one might enforce when using 1983 b. Federal Statutory Wrongs i. Statute's reference to deprivation of rights protected by "laws" of the US suggests laws other than constitutional law, such as federal statutes. ii. When Congress Provides Private Cause of Action (A) Would allow private person injured by defendant's failure to comply with statute to bring a civil lawsuit against plaintiff. If plaintiff sought damages, damages judgment (and threat of future ones) would deter defendant from future violations. Injunction would also further compliance with the law. iii. No Private Cause of Action Where Wrongdoer is Governmental Actor (A) Plaintiff may look to 1983 to enforce standard of conduct already articulated by Congress. (B) Maine v. Thibutot - Ct allowed plaintiffs to use 1983 as a vehicle to sue the state of Maine and its officers in state court for violations of the federal statutes governing welfare benefit calculations. a. Approach proved to be handy tool for allowing private lawsuits to enforce many federal statutory rights b. Offered an "end run" around SCt restrictive approach to creating "implied rights of action" (C) After Thibutot, Ct ruled 1983 not available for actions where Congress had expressly precluded, but also where Congress had implicitly precluded by creating "comprehensive scheme of express remedies" a. National Sea Clammers - Ct refused to allow litigant to use 1983 to circumvent procedural requirements in "comprehensive enforcement scheme" contained in Congressional legislation. Plaintiffs were not able to use 1983 as a vehicle for suit where they had failed to comply with certification standards in federal environmental protection statutes. (D) For a statutory standard to be enforceable through 1983, standard must impose on states a binding obligation. a. Wilder - Congress created no binding obligation because it gave states latitude to develop plans to enforce standards (E) Gonzaga: Most Restrictive a. Congress did not allow private c/o/a under FERPA, statute Congress passed pursuant to Spending Power. b. In strong language, SCt stated "we now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under 1983." c. Emphasized that Congress must speak with "clear voice" and manifest an 'unambiguous intent' d. Ct also yoked availability of 1983 to question of whether Congress had created new rights in a statute that were enforceable through a private right of action implied from the statute itself (rather than through 1983) 1. Demise of Thibutot "end run": Ct made clear that its restrictive approach to inferring implied causes of action from statutes should also apply where plaintiffs seek to use 1983 to enforce standards of conduct from another statute. e. Finally, Ct rested decision in part on source of Congressional power to enact FERPA: spending clause. 1. Ct suggested that Congress has special enforcement leverage in spending clause context by being able to cut off funds to recipient institutions, thereby rendering unnecessary a private enforcement mechanism through 1983. c. Constitutional Wrongs i. 1983 provides plaintiffs with a remedy if they can convince a court that a state or local official has violated a
i. 1983 provides plaintiffs with a remedy if they can convince a court that a state or local official has violated a provision of the Constitution, which has its own force separate from 1983. ii. In interpreting 1983, SCt has been attentive to policing relationship between constitutional law and state tort law. iii. 1983 confined to instances where state remedies, such as state tort law, are unavailable. iv. Ct recognizes federal right under 14thAd only where it is needed to supplement existing state remedies. v. Plaintiff cannot recover from injury resulting from random and unauthorized acts of officials. vi. Parratt v. Taylor - Ct rejected prisoner's PDP claim to recover value of hobby kit that prison officials negligently lost. (A) Ct ruled that an allegation of negligent was sufficient to constitute a "deprivation" under the DP clause; however nothing that allleged official conduct was "random and unauthorized", Ct observed that only process that officials could have meaningfully provided would have occurred after deprivation occurred. (B) Postdeprivation process was provided by adequate state tort remedies, and Constitution's DP clause does not require more. (C) State law was all that is needed to redress the injury, and federal remedy was not needed as a supplement. vii. Prisoners cannot invoke the DP clause to recover for negligent acts of officials (A) Daniels , Davidson- Ruling that a DP claim requires proof of an intentional deprivation, Ct rejected portion of Parratt allowing recovery for an official's negligent act. a. Ct explained that "not only does 'deprive' connote more than a negligent act, but we should not 'open federal courts to lawsuits where there has been no affirmative abuse of power.'" viii. Zinermon - SCt denies opportunity to expand Parratt beyond procedural due process claims. (A) Althoguh Paratt restriction applies to deprivations of liberty as well as property, Court established that restriction does not apply to substantive constitutional guarantees (including rights rooted in SDP) (B) In contrast to SDP claims, PDP claims are focused on procedure itself, thus making relevant the adequacy of state procedures in evaluating whether a violation of procedural rights occurred (C) Ct explained that violations for substantive guarantees became complete at time of violation itself, a fact that could not be changed by state's postdeprivation process. d. Action at Law, Suit in Equity, or Other Proper Proceeding for Redress iv. Purposes of 1983 a. Section 1983 is a statute that is valid under 14th A Sec. 5, but it does NOT abrogate state sovereignty under 14th A Sec. 5 because no clear intent to abrogate. b. Allows suits for $$ damages. And we know you cant sue a state for $$ damages unless the state consents or Congress has abrogated. We therefore know that Section 1983 is NOT an abrogation statute. c. Always ask What are the goals of 1983? Why is the Court shaping the law the way that it is? Main goals = to deter state actors from violating peoples rights, compensate victims, and do all this in a way that wont scare people from going to work for the state. THESE are the considerations shaping the Courts construction of 1983 in these cases. They are also the guideposts we should use to determine if the Court is getting it right. v. Three Elements Must be Met 1. What does it mean for defendant to act under color of state law? a. The easiest element to meet. b. Basically, state actors will always meet. Authorized or unauthorized, valid or invalid policy. Recall from state action doctrine that private persons can count as state actors if reasonable person would think they are acting on behalf of the state. c. Section 1983 is a 14th A Sec. 5 statute. Does NOT abrogate state sovereign immunity, but is intended to protect individuals from constitutional violations committed by state actors. The states cannot be trustedthe relief afforded by 1983 is available regardless of what state remedies are available. No exhaustion requirement. d. Monroe v. Pape (pg. 1132) i. Chicago cops go to plaintiffs house and ransack it without a warrant. Made him and his wife stand naked in the living room while they searched. Arrested him and interrogated him for 10 hours. Gave him no due process at all! Eventually let him go. Plaintiff wanted to sue for a violation of his rights. Who is he going to want to sue? The city of Chicago, the police department, and the police officers! ii. But who was acting under color of state law? Several possible views: (A) If defendants are acting outside the scope of their responsibilities and are not authorized to do what theyre doing, they are NOT acting under color of state law. This is the view advocated by the dissent. Very pro-defendant. (B) Everything defendants do while on the job, authorized or not, is done under color of state law. Automatically applies to state actors whenever they act on the job. This is the view taken by the majority. Very pro-plaintiff. iii. Held: (A) Under color of state law for the purposes of Section 1983 means: Everything state and municipal actors do while on the job, authorized or not, is done under color of state law. a. Automatically applies to state actors or municipal actors whenever they act on the job. b. Cannot sue state actor in his or her official capacity for money damages unless consent (because no abrogation). 1. BUT, CAN sue state actor in his or her personal capacity for money damages under Section
1. BUT, CAN sue state actor in his or her personal capacity for money damages under Section 1983. 2. Reversed the lower courts dismissal of the complaint as against the officials. c. The Court concluded that Congress meant to give a remedy to parties deprived of constitutional rights, privileges, and immunities by an officials abuse of his position under section 1983. (B) Basically, under color of state law means the same thing as state action. a. There is NO requirement under Section 1983 to exhaust available state law remedies before bringing suit in federal court. 1. Just because the constitution and laws offer a civil remedy for the violation here and that remedy is adequate does NOT keep plaintiff from bringing suit. 2. Adequate state remedies are irrelevantplaintiffs need not exhaust them before bringing a 1983 suit. 3. 1983 is meant to supplement any remedy that a plaintiff might have under state law. 1. Underlying premise: Under the hierarchy of wrongs that can happen to a person, violation of federal rights by a state actor is very high up there! 2. violation of a federal right by a state actor is worse than violation of state law by a state actor!!! (C) Dismiss the complaint against the City because Congress has not intended the word person to encompass municipalities. a. This aspect of Monroe was later partially overruled in Monell which held that: 1. Local governments could face liability in federal court for violating individuals constitutional rights if the official committed the violation pursuant to a policy or custom of the local government. 2. Who is a person under Section 1983? a. We know States are NOT persons under Section 1983. i) A plaintiff cannot sue a state under Section 1983 for money damagesits NOT a source of abrogation. ii) A plaintiff CAN sue a state official in his or her official capacity for prospective injunctive relief under Section 1983, but cannot seek money damages. b. Municipalities (Monell) i. What about Cities and Counties? (A) Cities and counties can be persons under Section 1983! (B) Monroe (1961) said Cities are categorically NOT persons under Section 1983. B (C) But this aspect of Monroe was later partially overruled in Monell which held that local governments could face liability in federal court for violating individuals constitutional rights if the official committed the violation pursuant to an invalid policy or custom of the local government. (D) So authorization is not required to show individuals are persons, but IS required to show cities and counties are persons! ii. What about State Agencies? Can they be persons under Section 1983? (A) In cases after Monell, the Court has said that state agencies can be more like cities and counties and can thus be persons under Section 1983 iii. Official Policy or Custom: How can plaintiffs show there is an invalid policy? (A) Written policy will be easiest way for plaintiff to show. (B) Also, a city council vote will be easy to show and will count as an invalid policy a. (e.g., Owen v. City of Independence (pg. 1200)municipalities dont enjoy good faith immunity). (C) Final Decisionmaking Authority Figure (FDMA)hardest way to show there is a policy a. Final decisionmaking authoritylook to what the state law says on FDMA b. Answer to the question: When will a single act or decision by government officials count as an invalid policy? 1. Ratification by FDMA counts 2. If FDMA delegates authority and never reviews, the Court will see through that. c. Pembaur v. City of Cincinnati (pg. 1221) 1. LEOs called their supervisor, who told them to call the assistant prosecutor, and to follow his directions. The assistant prosecutor conferred with his supervisor and then told the LEOs to go in and get them. 2. Look to state law to see who the final decisionmaking authority figure is! Incorporate state law into 1983 for the purposes of determining who the FDMA is!!! 3. In ordering the deputy sheriffs to enter petitioners clinic the county prosecutor was acting as the final decisionmaker for the county, and the county may therefore be held liable under Section 1983. 4. Dissent: How in the world can a single decision ever count as a policy??? 1. It is circular to say that something is a policy simply by nature of having been uttered by a policymaker. 2. We should be looking at the nature of the decisionwas it intended as a rule of general applicability, or only a command relating to one specific instance? 3. Was the decision reached by a formal decisionmaking process, or merely off the cuff? d. City of St. Louis v. Praprotnik (pg. 1223) 1. State law says x is the FDMA, but the FDMA has delegated decisionmaking authority to his
1. State law says x is the FDMA, but the FDMA has delegated decisionmaking authority to his employee y. If x reviews and ratifies ys decisions, then the plaintiff could show an invalid policy. If x never reviews ys decisions, then the Court might have reason to suspect the delegation of authority is purposed to avoid the FDMA problem. BUT, if x sometimes reviews ys decisions but not always, then ys decisions dont count as policies because y is NOT the FDMA!!! 2. Supervisors have discretion. The FDMA resided with the person above the supervisors. The exercise of this discretion does NOT subject the local entity to 1983 liability for having an invalid policy. 3. Yet another decision where the Court is trying to read into 1983 When we think it is fair to hold local governments liable for the actions of their employees. e. McMillian v. Monroe County (pg. 1236) 1. Plaintiff wants to show county sheriff = FDMA so he can sue the county, but state law says that the county sheriffs are state officers (NOT county officers)! 2. Held: Sheriff is NOT FDMA for the county. State constitution, adopted in 1901, added county sheriffs to a list of statewide officers constituting the executive department of the state. The Court was not concerned about the possibility that this provision was meant to be a manipulation by the state to preclude liability because the provision long predated Monell. 3. This case reflects how highly the Court values federalisms dual sovereigntywho better than the state to decide who qualifies as a FDMA??? f. How about non-FDMA, lower level employees? 1. What if a jail has an official policy against sexual harassment, but lower level employees have created a culture of sexual harassment and the higher-ups knew or should have known about the culture but did nothing to stop it? 2. When does this kind of culture become a policy such that the local government can be amenable to suit under 1983? 1. The FDMA figure may have a written official policy but nonetheless allow his employees to systematically violate the policy. 1. In such circumstances, can the local government be held liable? 2. When the FDMA knows about rogue cops but refuses to do anything, will that count as an invalid policy such that the city can be sued under 1983. 2. Can always hold the lower level employees committing the wrongs liable for $$ damages under 1983, but the big question is whether plaintiff can hold the city liable. g. When is failure to train an official policy or custom under Monell? 1. VERY hard to show. 1. The woman in the police rape case alleged inadequate training, but that seemed like an inappropriate thing to allege. 2. The more outrageous the LEOs conduct, the less need to train against that conduct. 3. LE departments need not train their officers to refrain from kidnapping and raping women. 2. Oklahoma City v. Tuttle (pg. 1238) 1. When do we think its fair to hold the local government responsible for what the state actor does? 2. Plurality said that proof of a single incident would not be enough to hold a municipality liable under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. 3. City of Canton v. Harris (pg. 1238) 1. Failure to train counts as a policy under Monell for purposes of holding a local government liable for $$ damages under 1983 ONLY WHEN the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. Policies, under Monell, are deliberate and consciousonly when failure to train is deliberate and conscious will it count as a Monell policy. 2. Deliberate Indifference standard. Unclear whether this standard is subjective or objectivelikely depends, yet again, on the Courts notion of when it is fair to hold local governments liable. b. Individuals: (A) State actors sued in their individual capacities are certainly persons in the 1983 sense, and they act under color of state law whenever they act on the jobsee Monroe. (B) Immunities: some state actors get absolute immunity, but all state actors enjoy qualified immunity. a. Everyone who works for the government enjoys an immunity cloak, though some cloaks are thicker than others. 1. At a minimum, government actors enjoy qualified immunity. 2. By the way, the standards for federal and state actors are the same. 3. Trying to balance compensating victims, deterring unlawful conduct, but not discouraging public service. 4. A fairness inquiry disguised as statutory construction.
4. A fairness inquiry disguised as statutory construction. (C) Absolute Immunitytotally immune from 1983 money damages suit (and sometimes even injunctive relief) a. Judges, when engaged in the act of judging, have absolute immunity, even from injunctive suits (with one very small exceptionsee text of 1983) 1. This makes a lot of sense. We dont want to make judges vulnerable to suit by the hundreds of thousands of losing parties that come before them. 2. Even if a judge convicts someone of a nonexistent crime, the judge enjoys absolute immunity. 3. There are already adequate checks here: impeachment, elections, appellate review, etc. b. Non-judges, when engaged in the act of judging (e.g., state university personnel boards deciding who gets tenure; parole boards; etc.), may get absolute immunity, though circuits sometimes disagree on the particulars. 1. Make arguments both ways c. Legislators, when they are legislating, enjoy absolute immunity, even from injunctive 1983 suits. 1. The check = the political process here. d. Prosecutors, when they are prosecuting, enjoy absolute immunity 1. Only considered prosecuting when doing activities closely related to the judicial process. 2. A probable cause hearing to get a warrant = prosecuting, but mere investigation prosecuting. 3. Training lower ranked prosecutors = prosecuting. Do not want people to be able to sue the DA for inadequately training the ADA. e. Police officers, when testifying in court, enjoy absolute immunity 1. Immune from 1983 suit, but there are other checks: perjury prosecution, political and media pressures, etc. f. President of the United States enjoys absolute immunity for decisions he makes while in office. The president is always presiding. 1. The check here is impeachment and the political process. (D) Qualified Immunity a. Qualified Immunity is an Affirmative Defense 1. Every state worker enjoys the assumption that he is acting in good faith. 1. This is the whole idea behind qualified immunity. 2. We know, however, that not all state actors act in good faith. 3. The question then becomes How does a plaintiff successfully rebut the presumption that the state actor is entitled to qualified immunity? 2. Qualified immunity is an affirmative defense under the FRCPdefendants must raise, or they will waive it b. Modern Standard 1. Qualified Immunity Test: When Complaint Says "X Happened": 1. Is there a violation? [assume x is what happened] 1. If the answer is no, Defendant gets qualified immunity. 2. If the answer is yes: 2. Was the law clearly established? 1. The Court is looking to see whether the Defendant was put on notice about whether his conduct violated federal rights. 2. Not looking for an exact case on pointwould a reasonable person have been put on notice that his conduct violated federal rights? 3. If not, the Defendant will enjoy qualified immunity. 3. Would reasonable officer have believed his conduct was lawful? 1. If yes, entitled to qualified immunity. 2. If no, no qualified immunity. 3. The Court wants state actors to be able to make reasonable mistakes! 4. Could make a good argument that this question allows the subjective element to creep back inthe reasonable person incorporates some subjective elements. 2. The Court has made the qualified immunity test purely objective so qualified immunity can be decided as a matter of law on summary judgment. 1. Doesnt even want things to go to discovery because its too costly for poor state actors. 2. Courts have discretion on which order to answer these questions. 3. Can allow limited discoverysee footnote from Anderson: 1. Thus, on remand, it should first be determined whether the actions the Creightons allege Anderson to have taken are actions that a reasonable officer could have believed lawful. If they are, then Anderson is entitled to dismissal prior to discovery. If they are not, and if the actions Anderson claims he took are different from those the Creightons allege (and are actions that a reasonable officer could have believed lawful), then discovery may be necessary before Andersons motion for summary judgment on qualified immunity grounds can be resolved. Of course, any such discovery should be tailored specifically to the question of Anderson's qualified immunity.
immunity. c. Who enjoys? 1. Judges, when they arent judging (e.g., merely hiring), will receive only qualified immunity. 1. (Non-judicial, administrative activities merit only qualified immunity._ 2. Legislators, when they are not legislating, enjoy only qualified immunity. 3. Prosecutors, when not prosecuting (e.g., investigating), enjoy only qualified immunity. 4. Police officers, when not testifying in court, enjoy only qualified immunity. 5. Nowhere does the text of 1983 mention anything about immunities 1. Every person who . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities . . . shall be liable to the party injured . . . . 2. Theoretically, this is all an exercise in statutory construction, but NOWHERE does the text even talk about immunities. 3. The Court is making all this up here and is trying to balance values: 1. Compensation for harm and deterrence from future violations while not deterring people from public service due to potential liability i. Scheuer v. Rhodes (1974) (pg. 1147) (A) Note that this case arose out of the Kent State shooting incident. Well see a change as things progress to the modern Court. Evaluate which approach you think is best for the federal courts essential functions. (B) Should the standard to determine whether the good faith presumption is rebutted be an objective and / or subjective standard? (C) Here, the Court chooses a test with both objective and subjective elements: a. It is the existence of reasonable grounds for the belief formed at the time and in light of the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct. b. Qualified immunity = (a) objective reasonable grounds for belief + (b) subjective good faith belief ii. Wood v. Strickland (1975) (pg. 1155) (A) Girls expelled for spiking the punch at prom. Expelled without any semblance of due process. Expelled and THEN given a hearing. The parents brought a 1983 action (B) Holding: a. In the specific context of school discipline, we hold that a school board member is not immune from liability for damages under Section 1983 if he knew or should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the students. iii. Harlow v. Fitzgerald (1982) (pg. 1156) (A) As long as the subjective element remains part of the test, the federal courts will not be able to achieve the purpose of 1983to shield government officials not only from having to pay damages, but from having to go through too much litigation (B) We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory constitutional rights of which a reasonable person would have known. (C) Two-pronged Objective Test Developed a. Was there a violation? b. Was the [statutory or constitutional] right clearly established? c. But what does clearly established mean??? 1. United States v. Lanier (1997) (pg. 1170) 1. Do NOT need a precedent case with the same facts to make something clearly establishedsome of this is common sense. 2. Dont need a case on point to know that a judge cannot sexually assault women in exchange for favorable rulings. 3. The judge was on notice / fair warning that such conduct violates the 14th Amendment. 2. Hope v. Pelzer (2002) (pg. 1170) 1. Alabama Dept of Corrections chained inmates who refused to work to a hitching post for punishment. Hope was one of those inmates and sued under 1983 for 8th and 14th A violationsbut the cases on which Hope relied were not completely factually on point. Defendants claimed qualified immunity because the law was not clearly established. The Court disagreed. 2. Here, the Court interprets Lanier to mean that: The salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional. d. If yes to both, then grant summary judgment for defendant because defendant is entitled to qualified immunity! Defendant gets to avoid a costly trial and wins on summary judgment! e. This allows defendants to act even with malice so long as the right they violate is not clearly
e. This allows defendants to act even with malice so long as the right they violate is not clearly established. The Court values the goal of protecting government actors from litigation over the goal of compensation for, and deterrence from, harm!!! The goal is also to put defendants on NOTICE that certain rights are clearly established and violations of them are impermissible. f. Anderson v. Creighton (1987) (pg. 1159) 1. Scalia wrote for the Court. Footnote: Thus, on remand, it should first be determined whether the actions the Creightons allege Anderson to have taken are actions that a reasonable officer could have believed lawful. If they are, then Anderson is entitled to dismissal prior to discovery. 1. If they are not, and if the actions Anderson claims he took are different from those the Creightons allege (and are actions that a reasonable officer could have believed lawful), then discovery may be necessary before Andersons motion for summary judgment on qualified immunity grounds can be resolved. 1. Of course, any such discovery should be tailored specifically to the question of Anderson's qualified immunity. 2. Thus, Anderson directs courts to avoid discovery as much as possible, but this footnote is mystifying! 1. Arent we supposed to look at things in the light most favorable to the nonmoving party??? 3. All this boils down to showing that there is a STRONG presumption of qualified immunity. 1. Defendants are entitled to make reasonable mistakes. g. Under Anderson, looks like the process, when plaintiff alleges x happened, is: 1. Assuming x happened, is there a violation? 1. If not, qualified immunity! 2. If there would be a violation, continue: 2. Assuming x happened, was the law clearly established? 1. If not, qualified immunity! 2. If yes, no summary judgment unless defendant disputes that x happened. 3. If defendant says x didnt happen; y happened, then: 1. Would a reasonable person in defendants shoes have thought his conduct was lawful? 1. If yes and y is what really happened, then qualified immunity! 2. If no, then no qualified immunity! 4. On a qualified immunity summary judgment motion, say court determines that there was a violation but the law was not clearly established. 1. BOTH parties will want to appeal this decision! 2. Plaintiff will appeal because he lost, and defendant will want to appeal because, although he won, he has now been put on notice that his conduct is a violation. 3. Defendant may want to keep doing what he was doing, and wants to get the decision that his conduct is a violation reversed. (D) But See Camaretta v. Green (2011) a. Justice Kagan wrote for majority. Said that defendant who won on a qualified immunity summary judgment in the circumstance described immediately above has indeed suffered an injury and that he thus has standing to appeal (even though he won). b. The Courts recent objective standard (rejecting the subjective state of mind of the defendant) makes the immunity cloak very sturdy. 1. Could say that this is hurting the federal courts essential function of protecting individual rights and creates a sense of unfairness. 2. BUT, could also say that this is encouraging public service and fosters the values of federalism and SOP. (E) Ask whether these hurdles are fair for holding cities liable. a. Makes sense that written policy or city council vote should make city open to being sued. b. Normatively speaking, is the Courts high hurdle to show FDMA and official policy in such cases the correct balance? 3. For What Wrongs? a. Federal Statutory Law: What does and laws mean? i. 1983 is not an abrogation statute, but it was enacted pursuant to 14th Amendment Section 5. (A) Does it provide a right of action for any federal law, or only civil rights laws? a. It seems logical, on one hand, to say it only provides a right of action for civil rights laws, because enacted pursuant to 14th Amendment Section 5 powers. b. But in 1980, the Thiboutot Court said and laws has a plain meaningany federal statute, civil rights or not! 1. But this was then limited to only a presumption that 1983 is available by the Court in Gonzaga University. The Court has said that although 1983 is presumptively available, plaintiff needs to show that the federal law creates a substantive right. 2. The Court distinguishes between mere benefits and interests vs. rights. 3. The language in the statute has to be unambiguously clear that it is creating an individual substantive right.
ii.
iii.
iv.
v.
vi.
vii.
viii.
substantive right. 4. The defendant can rebut the presumption by showing the statue does not create an individually enforceable substantive right. 5. If a statute has its own remedial scheme, there is a presumption that that remedial scheme supplants / supersedes 1983 (unless Congress clearly states to the contrary). 6. The Gonzaga University Court thus did not overrule Thiboutot, but rather relegated it to an easily rebuttable presumption. We might say that normatively the Gonzaga decision makes a lot of sensereminds us of the Flores case (A) Congress can NOT create substantive rights under the 14th Amendmentcan only enforce 14th Amendment. (B) The rights secured not by the Constitution by rather the laws will come from Article Iwe know that Article I cannot abrogate state sovereign immunity and that Congress cannot create rights under the 14th Amendment. After Gonzaga University, 1983 is only useful for civil rights laws violations. (A) We know this because Congress cannot create substantive rights under the 14th Amendment. (B) Alleged constitutional violations will of course be the most clearly remedied by 1983. (C) So sometimes someone might claim a denial of benefits or interests is also a constitutional violation (e.g., denial of Due Process). Telecommunications Act: Plaintiff applied for permit and was denied. (A) Any person adversely affected by any final action that is inconsistent with this Act may commence an action in any court with competent jurisdiction. (B) Clearly creates an individually enforceable right. BUT: alternative relief (temporary use permit) was read to preclude 1983. If there had been no alternative relief, probably could have sued under 1983. 1983 creates a right of actionthe pathway into courtfor someone who has suffered a wrong. (A) Like a tortsomeone who has suffered an injury has the ability under 1983 to use that pathway to seek a remedy. (B) 1983 suggests to us that the 14th Amendment is not self-executing, but we will never know for sure whether the 14th Amendment is self-executing unless Congress repeals 1983. Maine v. Thiboutot (pg. 1281) (1980) (Brennan wrote for the Court) (A) Issue: Does and laws mean (a) any federal statute OR (b) merely only civil rights (14th Amendment statutes a. The right alleged here was under the Federal Social Security Act. (B) The Court subjects itself to criticism when it says just read the statute. a. The text begs for interpretationnot clear on its face. b. The Courts assertion that the text is clear on its face seems hollow and unpersuasive. (C) Holding: and laws means any federal statute, not merely 14th Amendment statutes. a. Plaintiff can bring 1983 action against a state actor for violation of any federal statute. b. Here, the plaintiffs went to state court to sue the state of Maine. c. Realize that this was before Alden was decided11th A hadnt yet been read to prevent suing a state in its own courts. d. No abrogation problems at the time, and 1983 was read to allow the suit because of the lack of abrogation problems. Looking forward from Maine v. Thiboutot: Whats my best guess on how the Court will develop the law on this issue in the future, given all the cases weve discussed so far? (A) The modern Court will probably think this case was too broad and will want to narrow the definition of and laws. a. This was a Brennan opinion and was decided at a time when Brennan was writing a lot of the majority opinions. b. We know from other areas that Scalia starts writing a lot of majority opinions in our other areas (11th A, Justiciability, etc.). (B) How will the Court do this? The Court will say that there is a presumption that 1983 protects against violations of any federal statute. But only when statutes: a. create an individual RIGHT (decided by a clear intent / unambiguous standard). 1. This clear intent standard to narrow the Courts power is totally in keeping with everything weve seen so far; AND b. dont contain such an extensive remedial scheme that the only reasonable inference is that Congress wanted to preclude 1983 relief (looks like Seminole Tribe!) Gonzaga University v. Doe (pg. 1297) (2002) (Rehnquist opinion) (A) The Court turns Gonzaga into a state actor. a. Rehnquist began by noting that FERPA was enacted under Congresss Spending Clause power (Article 1). A benefit or interest, NOT a Rightonly an Article 1 right. (B) Article I cant abrogate state sovereign immunity a. The 14th A can abrogate, but we need clear intent (and 1983 doesnt have clear intent and therefore doesnt abrogate) (C) Congress cant create constitutional rightscan only enforce rights under the 14th Amd. (Flores) a. We have this presumption that 1983 protects against violations of any federal statute and know that 1983 is a 14th Amendment statute
that 1983 is a 14th Amendment statute b. 1983 creates a right of action under 14th Amendment powers c. In the rare case where you clearly have an Article I right, 1983 creates a right of action, but when will an Article I statute ever satisfy that standard? (D) We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under 1983. (E) Section 1983 provides a remedy only for the deprivation of rights, privileges, or immunities secured by the Constitution and laws of the United States. a. Accordingly, it is rights, not the broader or vaguer benefits or interests, that may be enforced under the authority of that section. b. This being so, we further reject the notion that our implied right of action cases are separate and distinct from our 1983 cases. To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under 1983. c. We have recognized that whether a statutory violation may be enforced through 1983 is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute. Wilder, supra, at 508, n. 9. (F) But the inquiries overlap in one meaningful respectin either case we must first determine whether Congress intended to create a federal right. a. Thus we have held that [t]he question whether Congress intended to create a private right of action [is] definitively answered in the negative where a statute by its terms grants no private rights to any identifiable class. Touche Ross & Co. v. Redington, 442 U.S. 560, 576 (1979). b. For a statute to create such private rights, its text must be phrased in terms of the persons benefited. Cannon v. University of Chicago, 441 U.S. 677, 692, n. 13 (1979). 1. We have recognized, for example, that Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 create individual rights because those statutes are phrased with an unmistakable focus on the benefited class. Id., at 691 (emphasis added).3 c. But even where a statute is phrased in such explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent to create not just a private right but also a private remedy. Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (emphases added). d. Plaintiffs suing under 1983 do not have the burden of showing an intent to create a private remedy because 1983 generally supplies a remedy for the vindication of rights secured by federal statutes. 1. Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by 1983.4 2. But the initial inquirydetermining whether a statute confers any right at allis no different from the initial inquiry in an implied right of action case, the express purpose of which is to determine whether or not a statute confer[s] rights on a particular class of persons. California v. Sierra Club, 451 U.S. 287, 294 (1981). 3. Accordingly, where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under 1983 or under an implied right of action. ix. Why doesnt the modern Court just say that 1983 only provides a right of action for violations of constitutional rights? (A) In some ways, thats where were ending up. x. Why doesnt the modern Court just overrule Maine v. Thiboutot? (A) Hasnt it already effectively done so? And wouldnt such a rule make sense? (B) 1983 is a 14th A Sec. 5 statuteif Congress wants to create Article I rights and enforce them through other statutes, then thats fine. But dont highjack 1983a 14th A Sec. 5 statuteto do so! b. Constitution - What Does it Mean to have a Constitutional Violation?
SDP
BOR+ Can state justify law?
Did state actor abuse his/her power?
No
Yes
Negligence; no violation
Non-emergency Reflective "shocks the conscience"
emergency (reflexive) "intent to harm"
i. Construing the 14th Amendment: Three types of claims for violations of 14th Amendment Due Process:
i. Construing the 14th Amendment: Three types of claims for violations of 14th Amendment Due Process: (A) Specific BOR rights (e.g., free speech, keep / bear arms) a. Can the state justify the law? 1. If yes, then no violation. 2. If no, then there is a violation. (B) Non-textual (implied) Substantive Due Process rights (e.g., abortion) a. Can the state justify the law? 1. If yes, then no violation. 2. If no, then there is a violation. OR b. Did state actor abuse his or her power? (procedural due process) 1. County of Sacramento v. Lewis (proper standard for SDP analysis is NOT deliberate indifference but rather whether the state actor had been guilty of an abuse of power that shocks the conscience.) 1. If only negligence, NOT an abuse of power and therefore NO violation. 2. If worse than negligence, then ask: 1. Whether there was an intent to harm without justification 2. Whether the state actor acted during a time of non-emergency (reflectiveless leewayask whether the state actors actions shock the conscience) vs. a time of emergency (reflexivemore leewayask whether there was an intent to harm without justification). 2. If the requisite standards are met, then there is a 14th Amendment violation (still very difficult) 1. Procedural Due Process a. Two Elements: Notice and Opportunity to Be Heard b. Questions: 1. Are there adequate state remedies? - No: More likely to be a violation - Yes: Less likely to be a violation 2. Was the defendants conduct authorized? (see Parratt) - No: Less likely to be a violation (because state cannot control random and unauthorized acts) - Yes: More likely to be a violation 3. Was an effective pre-deprivation hearing possible and not provided? - No: Less likely to be a violation (e.g., Parratt) - Yes: More likely to be a violation (e.g., Zinermon, according to the majority) c. Normatively, ask how these factors should be ordered and which, if any, should be controlling. Depends on your opinion of what PDP really means!! ii. Procedural Due Process 1. Parratt v. Taylor (pg. 1259) (1981) (Rehnquist opinion) a. Prisoner saves up for a hobby kit that costs $23. The prisoner orders the hobby kit and it comes to the prison while hes in segregation. Somehow the hobby kit got lost. It meant a lot to him. He brought a 1983 action for the loss of his hobby kit. b. What is the Court looking at to see if theres a violation? Looking at these: 1. Whether the state has provided a post-deprivation remedywhy are you knocking on our doorgo knock on your states door! (BUT 1983 is SUPPLEMENTAL to any state remedies arent adequate state remedies irrelevant???) 2. Whether there a pre-deprivation hearing (opportunity to be heard) was available (but this factor is irrelevant here). 3. What mens rea is required for a defendant to violate Due Process (this inquiry reminds us of the subjective element that the modern Court got rid of for qualified immunity, where the Court didnt want to deal with the defendants state of mind)? 1. Here, the state of mind was simply negligence. 2. Can a state actor EVER negligently deprive someone of his constitutional rights? 1. Yes, but not here, the Court says, because the post-deprivation remedies are sufficient. 2. There wont be a constitutional violation until the state doesnt provide due process to. 1. Were not going to make a mountain out of a mole hill. Give him a hobby kit or his money back, and there will be no big deal. 3. Theres no constitutional violation unless the state provides a remedyscore a point for federalism. c. The Court interprets the Due Process Clause merely to require an adequate state remedy. 1. Interpreting the procedural aspect of the Due Process Clause. iii. Hudson v. Palmer 1. What about intentional wrongdoing? Is there a constitutional violation? a. Yes, if there is no adequate state remedy. b. But no if there is an adequate state remedy.
b. But no if there is an adequate state remedy. c. Here the state is interpreting the 14th Amendmentthe state cant take property without due process of law. If the state takes property but gives procedural due process, there is no constitutional violation! 2. It is random and unauthorized acts that the Court is most concerned with, the Court says. a. This seems random because the Court is thinking out loudtrying to decide what = a 1983 constitutional violation. b. The Court is granting cert on cases that will help it to develop a standard. 3. In this case, the Court seems to do away with the mens rea factor. a. The Court was doing an experimentwhat happens when all the factors stay the same except the mens rea? b. The result of this experiment = it makes no difference, and therefore its not the variable that controls. 4. Here, upped the ante with the mens rea from Parratt but still reached the same conclusion. But what about substantive due process? PDP is the least important form of DP. c. Substantive Due Process i. Daniels v. Williams (pg. 1262) (1986) (Rehnquist opinion) 1. Yet another prison case. Prisoner trips over a pillow and gets seriously hurt. Asserted that the injury was a deprivation of his liberty interest under the Due Process Clause. 2. We can give you procedural due process and still take away your substantive due process. a. Can still take away your liberty. b. Talk about controlling for variables! 3. Here, the Court says the negligence mens rea can NEVER suffice as a due process violation, either procedural or substantive. a. Accidents happen, and people get hurt, but were not going to make mountains out of mole hills. b. We are not going to turn every tort that might happen into a constitutional tort, because the Court is interpreting the 14th Amendment here. c. So mens rea now becomes relevant again. 4. Here, the mens rea variable controlled! a. In some ways that makes sense because people make mistakes and it seems intuitive that negligence shouldnt amount to a constitutional violation. 5. Here, there was no adequate state remedythe state had sovereign immunity and couldnt be sued in tort. a. But even so, what were the prisoners damages? b. Medical expenses were already covered because plaintiff was treated in a state prison hospital. ii. Davidson v. Cannon (pg. 1263) (1986) (Rehnquist opinion) 1. An experiment on substantive due process and a higher mens rea.. 2. Prisoner sent letter to prison officials warning them he would likely be assaulted. They neglected to take timely action, and he got the crap kicked out of him. Plaintiff claimed deliberate indifference / willful disregard / recklessness. But the Court held there was no constitutional violation here. d. Zinermon v. Burch (pg. 1264) (1990) (Blackmun opinionRehnquist, OConnor, Kennedy, and Scalia dissented) i. Here, the Court is looking for another good case to help clarify what it is we need to look at to determine whether there is a constitutional violation. 1. Thats why the Court took the Zinermon case, and thats why its still looking for a good case. ii. Adequate State Remedies generally irrelevant to Sec. 1983 violations (Monroe). 1. This general rule applies in a straightforward way to alleged violations of BOR rights and non-textual SDP rights, but not so much to alleged violations of procedural due process. iii. This case is a procedural due process case (plaintiffs counsel could also have pleaded violation of SDP liberty because was institutionalized as a result of the lack of procedural due processbut plaintiff didnt plead it). iv. Here, defendants subjective state of mind (excluded from qualified immunity inquiry) re-enters the picture in a big way and features as the test for one of 1983s three elements (violation). v. Adequate state remedies and PDP are IRRELEVANT for allegations of SDP violations! BUT, adequate state remedies ARE RELEVANT for allegations of PDP violations!!! 1. Whether or not the state gives a plaintiff procedural due process is irrelevant to whether the state has deprived the plaintiff of substantive due process. a. A state can give you PDP but still deprive you of SDP. vi. Rush Says: Plaintiffs should allege both SDP and PDP violations! 1. Why only take one of two free-throws??? 2. The plaintiff here should have alleged both. S 3. DP = liberty, and PDP = notice and opportunity to be heard. III. Suing the Federal Government and Federal Officials i. Bivens 1. The Fourth Amendment is self-executing, at least as against the federal government! 2. Implied right of action directly under the Fourth Amendment! 3. We might ask, given this case, whether the Fourteenth Amendment is self-executing? a. Until Congress repeals Sec. 1983, however, this will remain a merely rhetorical question. b. In fact, what we know about abrogation and the 14th Amendment (clear intent + congruence & proportionality are
4.
5.
6.
7.
b. In fact, what we know about abrogation and the 14th Amendment (clear intent + congruence & proportionality are needed to abrogate 11th Amendment state sovereign immunity), combined with the existence of Sec. 1983, suggests that the 14th Amendment is NOT self-executing. Could Bivens be extended past the Fourth Amendment context? a. Given what we know about the trend of the modern [Rehnquist-Roberts] Court, is the present Court more or less willing to find an implied right of action under provisions of the Bill of Rights? i. MUCH less willing!!! See the Wilkies case. Three main essential functions of the Court: a. SOP b. Federalism c. Individual Rights To the extent that individuals do NOT have an implied right of action under the Fourth Amendment against state actors for money damages, are the federal courts able to perform their essential functions? a. Theres always the possibility of having Young relief or consent. b. Or state tort lawcan sue in state court. There is definitely a connection between Bivens and the 1983 casescan you see it?

Introduction The Role of Federal Courts: Main Outline

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Introduction The Role of Federal Courts: Main Outline

Uploaded by

Copyright:

Available Formats

Main Outline

Saturday, December 03, 2011 4:33 PM

Introduction; The Role of Federal Courts

Congressional Power to Limit Federal Court Jurisdiction

Congressional Power to Create Non-Article III Courts

Federal Courts Page 6

Justiciability: Limitations on Federal Court Review

Federal Courts Page 10

Absolute barrier, no liability

Eleventh Amendment n/a

Municipal Officers: Official Capacity

Must be acting pursuant to law, custom, or policy

BOR+ Can state justify law?

Did state actor abuse his/her power?

Non-emergency Reflective "shocks the conscience"

emergency (reflexive) "intent to harm"

Federal Courts Page 46

You might also like